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Vicarious liability of employer under the Protection from Harassment Act 1997 making employer liable for its employee’s actions in the course of employment is poised for interesting ruling

Date: (21 May 2012)    |    

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The UK wide Protection from Harassment Act 1997 (PHA) has been applied to the case of murdered Roman Romasov a part time employee at Sainsbury’s in Aberdeen, whose family have said that the failure to deal with a harassment claim contributed to his death.

The family were seeking £500,000 in compensation. The Scottish civil courts had refused to dismiss the claim last month.

The family’s claim brought under the PHA could have lot of ramification on the HR related cases on both sides of the border it is believed. (Vaickuviene and others v J Sainsbury plc).

The facts of the case as it goes concerns the Lithuanian born Roman Romasov who wrote a grievance to his line manager complaining about racist remarks from colleague Robert McCulloch, an alleged BNP supporter, two days before his murder. Nothing was done but on 15 April 2009 McCulloch became aggressive again and later stabbed Mr Romasov to death in an aisle, for which McCulloch has been criminally convicted.

Romasov's family has argued that by not acting Sainsbury’s was responsible to some extent for the murder. They say his line manager crucially missed the chance to summon McCulloch to a disciplinary meeting, resulting in his dismissal, suspension or relocated to a different shift.

They have cited the case of Majrowski v Guy's & St Thomas's NHS Trust as decided by the House of Lords’ where it was held that an employer can be vicariously liable under the PHA for harassment committed by an employee in the course of employment.

But Sainsbury's, sought to have the family's claim dismissed by arguing that there was no sufficient connection between between McCulloch's act and his employment to make Sainsbury's responsible. That it was a personal dispute, which was not related to McCulloch’s employment to merit an employer's liability trial, they maintained.

The court decided not to summarily throw out the family's claim. Hence the matter now proceeds to a full hearing.

The fact that Sainsbury's failure to act on Mr Romasov's complaint strongly influenced the court's decision by not dismissing the claim out of hand could open up new opening in HR practicing. The court has noted and considered the chain of events that led to Romasov's murder which began with verbal harassment, of which the supermarket was fully aware, and culminated in homicide.

It also considered that the final act of McCulloch could potentially be regarded as an outcome of the way in which the employer chose (not) to respond to internal complaints, thus raising the possibility of allowing liability to fall on Sainsbury's shoulders. The court made no ruling on this but left it to the final hearing to make a determination of the issue.

In conclusion this case may be extreme but can only re-emphasise that, for all employers, dealing promptly with harassment was an absolute necessity. Especially with harassment ending up the way it did in the instant case.

The final ruling might take some time but leaves Sainsbury’s reputation as a responsible employer in an embarrassing position. This could lead other organisations to start a re look into their harassment complaints procedure and manager training programmes so as to be prepared for the event of an adverse judgment.

The PHA generally, can be used to bring claims against employers for up to six years after the harassment complained of, as opposed to the three month limitation for harassment claims brought under the Equality Act 2010. It doesn't require psychological damage to be proved; mere distress and anxiety would be enough. The PHA, was originally designed to deter stalkers, but is being increasingly used to target employers.