One of the key mischiefs which the Protection from Harassment Act 1997 was designed to address was stalking. However, in recent years the ambit of the Act has been drawn in ever wider terms by the court. Whilst at first glance it might appear that the Act only applies to conduct between private individuals, the court has made clear in recent cases that the Act also has implications in a commercial context. As it imposes both civil and criminal liability it is important that businesses are aware of the offences created by the Act and that steps are taken to avoid liability.

Section 1 of the Act provides:

"1. Prohibition of harassment – (1) A person must not pursue a course of conduct – (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of another."

In a number of cases the court has clarified the extent to which the Act can apply in the commercial context:-

A limited company cannot be harassed and so cannot seek relief under the Act. Daiichi UK Ltd v Stop Huntingdon Animal Cruelty concerned injunctions sought in relation to the activities of the Stop Huntingdon Animal Cruelty campaign against a number of companies and their employees. The court held it was appropriate for the claimants (who in most cases were the managing directors of the affected companies) to bring proceedings on their own behalf and representative proceedings on behalf of the companies' employees under CPR 19.6(1) because both had the same interest in the proceedings, namely not to be harassed by animal rights activists.

In Majrowski v Guys and St Thomas' NHS Trust the House of Lords held that an employer could be vicariously liable to a former employee for harassment by one of his co-workers.

In Ferguson v British Gas Trading Limited [2009] Mrs Ferguson brought proceedings against British Gas alleging harassment. She had transferred to a new energy supplier and yet British Gas continued to bombard her with bills and letters threatening to cut off her gas supply, to start legal proceedings and to report her to credit reference agencies. British Gas sought to strike out the claim on the basis that British Gas' actions were not sufficiently serious to amount to harassment, that the letters were computer generated and that Mrs Ferguson knew that the threats were unjustified. The court refused the application and that decision was upheld by the Court of Appeal. The court was not satisfied by British Gas' argument that it could not be held responsible for mistakes made either by its computerised debt recovery system or by the personnel responsible for programming and operating it. Although the decision was made in the context of a strike out application rather than at trial, it is likely that faced with a similar situation at trial the court will make a finding of harassment.

The court has confirmed that a company can also commit the criminal offence of harassment under the Act (Kosar v Bank of Scotland plc (t/a Halifax) [2011]) and a partnership can also be a defendant to a claim for civil harassment (Iqbal v Dean Manson Solicitors [2011]).

In Iqbal v Dean Manson Solicitors [2011] the court had to address three letters which were written by a firm of solicitors to another solicitor purportedly in the context of litigation. Mr Iqbal had been employed by Dean Manson Solicitors but had left to set up his own practice. He was instructed by former clients of Dean Manson to defend proceedings brought by the firm for unpaid fees. Dean Manson sent three letters to Mr Iqbal which called into account his professional integrity and suggested the circumstances in which he had left the employment of Dean Manson were untoward. Dean Manson sought to strike out the claim. At first instance the application was allowed on the basis that whilst the first two letters contained "unfortunate and regrettable passages" they were not oppressive or unreasonable. Whilst the third letter could be described as harassing it did not amount to a course of conduct which is required to establish a civil claim, i.e. conduct on at least two occasions.

The Court of Appeal found that each of the letters could arguably amount to an occasion of harassment such that all three could arguably amount to a course of conduct giving rise to a claim under the Act. The court decided that, "a professional man's integrity is the lifeblood of his vocation. If it is deliberately or wrongly attacked, whether out of personal self-interest or malice, a potential claim lies under the Act". The appeal was therefore allowed so that Mr Iqbal could continue with his claim. This was again a case considering whether there was an arguable claim under the Act rather than determining the case itself so it will be interesting to see if the court of first instance finds that the defendant was indeed harassed.

Key points

  • Employers can be vicariously liable for harassment by employees.
  • Businesses can be found guilty of harassment in the same way as individuals. They therefore need to consider whether any automated processes they operate such as credit control could amount to harassment.
  • Attacks on professional integrity may amount to harassment.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.