In 1996 Bill Majrowski began working as an audit co-ordinator for Guy's and St Thomas's NHS Trust. Soon after he joined the organisation, his line manager began making his life hell. She directed homophobic comments at him, gave him unrealistic targets for his performance and threatened him with unwarranted disciplinary action; she also treated him unfavourably and differently compared to other staff. Eventually she was suspended for harassment but Majrowski sought a wider recognition that his employer's anti-harassment procedures had failed and accordingly took the NHS trust to court.

His lawyers used the Protection from Harassment Act, originally brought in to deter stalkers, to establish that employers can be found vicariously liable for harassment by an employee providing the harassment was closely connected with the bully's ordinary work duties, in the process opening an easier route to compensation.

The Majrowski decision should send alarm bells ringing for small businesses since now employers can be vicariously liable for the harassment of one employee by another for breach of a statute where there is no discriminatory element. All the employee has to do is show anxiety or distress following a course of unacceptable behaviour. The employee does not have to show that the consequences were foreseeable, as liability under the Act is absolute. Nor does the employee have to show that they have suffered a psychiatric injury.

A further advantage to the employee is that under the Protection from Harassment Act they now have six years to make a claim as opposed to three months under discrimination laws. To make matters worse for employers, a breach of the Act can constitute a criminal offence as well as a civil remedy and an errant employer could face a fine, compensation or, worst-case scenario, a jail sentence.

We recommend that employers do the following to safeguard themselves:

• Closely monitor your employees when allegations are made about bullying and deal with the situation when employees become upset or react badly to something that has been said or done.
• Make sure that you and your colleagues are aware of the Majrowski judgement and mindful of the risks it brings to your business.
• Check your liability insurance; see whether claims brought against you using the Protection from Harassment Act would be covered

Epoq is currently developing a document which will enable employers to draft a harassment policy and procedure for their business. This will assist in guarding against potential claims by employees and will be available in November.