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By Michael Scutt, 24/12/2009 10:30 am

simply having a wonderful Christmas time ...

Everyone is producing reviews of the decade at the moment – they seem to be everywhere in the newspapers and online.  I was taken by The Independent’s sports poll in which Thierry Henry is a leading candidate for “Villain of the decade” for his recent handball against the Republic of Ireland, presumably on the basis that it is still fresh in everyone’s minds (and isn’t The Independent Irish-owned?).  That’s always the problem with these polls, it becomes hard to remember who the villains were in 2008, let alone 2000. 

In the employment law sphere, one villainous issue has stayed with us and probably deserves the title more than Thierry Henry: stress at work.  It has been a constant theme throughout this decade, simmering away in the background since the case of Hatton v Sutherland prevented it from becoming a rolling boil (perhaps running sore would be better?) back in 2002.  That case placed a very heavy burden on employees wishing to sue their employers for negligently causing their stress.  Then the case of Majrowski v Guy’s Hospital NHS Trust came along in 2005 and held that an employer could be vicariously liable under the Protection from Harassment Act 1997 (“PHA”) for causing distress or anxiety at work.  For a while that case looked like it would turn the temperature right up again, only for Conn v City of Sunderland [2007] to cool matters by saying that employers would only be liable where the bullying and harassing behaviour amounted to “near-criminal” standards of behaviour.

The recent case of Judy Veakins v Kier Islington Limited [2009], recently heard before the Court of Appeal (CA), has been cited as threatening to raise the temperature again on this difficult issue, by holding that Ms Veakins had been the victim of “oppressive, unreasonable and criminal (behaviour)”. I don’t think it will do so and I don’t think it takes the law any further forward.  In the WLR report of the case Maurice Kay LJ is reported as saying

 “It should not be thought from the present unusually one-sided case that stress at work would often give rise to liability for harassment.” 

 In this case, for reasons not explained, the employer did not challenge the evidence of the Claimant nor contest whether there was vicarious liability.  The CA was prepared to find that the Claimant’s allegations did reach the required standard but it must be open to question whether it would had the employee’s conduct been subjected to examination. To that extent this case does not assist in taking matters much further forward.  PHA claims are heard by the County Court, not the Employment Tribunal, which reminds us that the PHA was initially brought on to the statute book to give protection to people being “stalked”. To require “criminal” behaviour, as stated in the Conn case  doesn’t necessarily help: think about the offences of “threatening behaviour” or breach of the peace, where very low thresholds of behaviour can lead to the Old Bill feeling your collar.  The CA stated that whilst the PHA does not preclude employers being held vicariously liable this type of claim should be more properly heard in the Employment Tribunal.

Undoubtedly this case will be used by employees trying to pursue claims under the PHA, but I suspect that County Court judges will hesitate to rely upon it.  Instead the law on stress at work will remain as difficult and convoluted as before and that is not good news for either employers (for whom stress at work claims cause much stress) or employees. In the 1990s back injury claims were all the rage, to be replaced by stress at work in this decade.  It is time for the Courts to hand down a judgment that will resolve just what constitutes behaviour that is “oppressive and objectionable” in the workplace.  

I was going to do my own review of interesting cases from this year, but I’ve run out of time.  Thankfully, Daniel Barnett came to the rescue and pointed me in the direction of Wragge & Co’s review of the year.  It’s very good and is on their website so I don’t suppose they’ll mind me linking to it.

I’ve been rather snowed under with work this month and I’ve not had chance to devote as much time to the blog as I would have liked.  Normal service will be resumed in the New Year when I hope to unveil some (hopefully) interesting new features.  In the meantime, Happy Christmas and all best wishes for the New Year to you all.

Michael

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By Michael Scutt, 10/12/2009 3:15 pm

I’ve been maintaining radio silence for too long – sorry about that but the day job got in the way – and thought it was about time I put up another post. Part of the problem is that there has been a lot of stuff to write about and knowing where to start. However, our darling Chancellor, or should that be Mr Darling, Chancellor – has made my task a little easier today following his Pre-Budget Report, particularly with his tax on bankers’ bonuses.

More learned commentators than me are calling this the most political PBR for a long time and that is the only way to see the imposition of the temporary payroll tax on banks that pay discretionary bonuses in excess of £25,000. The measure will raise £550mn which is a mere drop in the cesspool of debt in which we are currently swimming. It won’t apply to guaranteed bonuses (which are often the most criticised element of remuneration policies) and is presumably relatively easy to avoid by paying larger salaries instead, or paying smaller bonuses quarterly, for example? So, in missing the main target and being easy to avoid is this just another example of “gesture politics”? It looks like it.

The government must have (or ought to have) had two real concerns. One, in implementing a genuinely swingeing tax on bankers’ bonuses it would merely have recycled the money back to the taxpayer, particularly where RBS and Lloyds Group, are concerned. The second concern would be to avoid harming London as a financial centre by making it unattractive to work and trade from there. With this new supertax it seems to me that Mr Darling has addressed both issues – it won’t raise much income and won’t cause much pain, but does allow the government to say it is “doing something”: gesture politics.

My firm has a lot of experience in advising employees on bonus schemes, discretionary or otherwise. Please call me if you need any further advice on these issues. I can be contacted on 0207 464 8433 or at michaelscutt@dalelangley.co.uk