Lord Sumption brings some rationality to harassment, but at the cost of practicality

In Hayes v Willoughby [2013] UKSC 17 the Supreme Court considered the competing virtues of subjective and objective tests, the meaning of “purpose”, “reasonableness” and most particularly “rationality” in relation to s.1(3)(a) Protection of Harassment Act 1997. As harassment is both a civil wrong and a crime, this judgement could have wide reaching effects. The issue in the case was simply whether a seemingly honest but irrational harasser could take advantage of the s.1(3)(a) defence.

Mr Willoughby used to be employed at one of several companies managed by Mr Hayes. The two of them fell out regarding Mr Hayes management of another company and Mr Hayes made allegations which were later found to be substantially justified by the Employment Tribunal. During the course of these proceedings in 2003 Mr Willoughby began an unpleasant and personal vendetta against Mr Hayes, alleging that his management of his companies was characterised by fraud, embezzlement and tax evasion. As a result of repeated communications from Mr Willoughby, the Official Receivers and the Department of Trade and Industry carried out investigations which concluded in 2007, finding no evidence of wrongdoing. Despite this Mr Willoughby continued his campaign.

The question for the Supreme Court was whether, after the conclusion of the official investigations in 2007, Mr Willoughby could continue to have the benefit of the s.1(3)(a) defence in relation to his conduct, which it was common ground amounted to harassment.

Section 1(3) Protection from Harassment Act 1997 provides:

“(3) Subsection (1) does not apply to a course of conduct if the person who pursued it shows-

(a) That it was pursued for the purpose of preventing or detecting crime,

(b) That it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or

(c) That in the particular circumstances the pursuit of the course of conduct was reasonable.”

A subjective or objective test

The point, as Lord Sumption put it, was by what standard the defendant’s purpose is to be addressed. It was put to the court in argument that the choice was binary- it was either an objective or subjective test. Both of these options were however rejected by Lord Sumption in his leading judgement. The difficulty with a wholly objective test was that it would only work within the context if a requirement of reasonableness was imputed- pursing the course of conduct must have been objectively reasonable. However, such an interpretation was not consistent with the wording of the Act, as it would subsume the s.1(3)(a) defence into the general s.1(3)(c) defence, namely it is a defence if the pursuit of the course of conduct was reasonable.

He also rejected a wholly subjective test on the basis that:

“A large proportion of those engaging in the kind of persistent and deliberate course of targeted action with which the Act is concerned will in the nature of things be obsessives and cranks, who will commonly believe themselves to be entitled to act as they do.”

The difficulty being that individuals may entirely believe themselves to be acting to prevent crime, but that crime may have no relation to reality let alone the law and so a purely subjective test would leave a large number of victims with no protection from such individuals. Hence:

“Some control mechanism is required, even if it falls well short of requiring the alleged harasser to prove that his alleged purpose was entirely reasonable.”

Rationality

Lord Sumption found the required control mechanism in the concept of rationality, stating that it was a familiar concept in both public law and in relation to contractual discretions. He explained the concept as follows:

“Rationality is not the same as reasonableness. Reasonableness is an external, objective standard applied to the outcome of a person’s thoughts or intentions. The question is whether for a notional hypothetically reasonable person in his position would have engaged in the relevant conduct for the purpose of preventing or detecting crime. A test of rationality, by comparison, applies a minimum objective standard to the relevant person’s mental process. It imports a requirement of good faith, a requirement that there should be some logical connection between the evidence and the ostensible reasons for the decision, and (which will usually amount to the same thing) an absence of arbitrariness, of capriciousness or of reasoning so outrageous in its defiance of logic as to be perverse.”

He rejected the idea that this could be similar to the standard of Wednesbury unreasonableness. For a defendant to take advantage of the defence, he must:

“have sufficiently applied his mind to the matter. He must have thought rationally about the material suggesting the possibility of criminality and formed the view that the conduct said to constitute harassment was appropriate for the purpose of preventing or detecting it.”

The justification for such a standard was that it enabled the court to apply to private persons a test which would apply to public authorities engaged in the prevention or detection of crime.

Dissenting judgements

The clear, practical problem with this, as identified by Lord Reed in his dissenting judgement, is that it is very difficult to see how juries in practice will understand and apply such subtle distinctions. Lord Reid said that it was unclear where such a test would sit on a spectrum between reasonableness and Wednesbury unreasonableness. He also highlighted the difficulty in drafting appropriate directions for juries based on such a test. It is notable that although he agreed with Lord Sumption, Lord Mance did not explain the ‘control mechanism’ in detail in his judgement.

In Lord Reid’s view, although it might be unfortunate in some circumstances, the test in s.1(3)(a) was wholly subjective and deliberately so in order to protect persons genuinely seeking to prevent crime, such as investigative journalists. He held that it was not for the Court to extend its ambit, particularly where the statute carried a criminal penalty.

Key factor in the case- lessons

The test in this case will require careful treatment by practitioners. Submissions in both criminal and civil cases will have to be carefully constructed in order to address the multiple stages of the mental process required for a person to have been acting rationally. Particular care will need to be had when drafting defences or defence case statements to ensure that the requirement for the requisite process has been addressed. It is likely that several trips to the Court of Appeal will be required before it is clear how this test will be applied in practice.

Oliver Newman, pupil barrister, Pump Court Chambers

10.04.2013

[1] With the move to expand flexible working options to a wider group of employees, what is your key advice to small business owners who need to manage a workforce that can now demand more flexible working?



Keep an open mind. Small businesses are already flexible. Micro and small businesses owners understand very keenly the benefit of having motivated and happy staff. In my experience they are, on the whole, doing as much as they can to help their staff. If there is a particularly knotty problem, take legal advice at the outset. It is often more cost effective than leaving it until things have gone wrong.

[2] Often, small businesses see the flexible working regulations as yet more red tape. But how can owner/managers turn this legislation to their advantage? What are the commercial advantages of a more flexible workforce?



There are huge commercial advantages to having a more flexible workforce. The key advantage is retaining good staff, particularly talented women, who are far more likely to stay with an employer that perhaps pays less than the going rate but allows them to work flexibly and to accommodate their work/home life. The same applies to fathers who want to be more involved in their children’s upbringing and appreciate flexible working. Small businesses are usually adaptable and are in a unique position to be creative with flexible working.

[3] Do you think that the problems that some business experience when complying with the flexible working regulations is an attitudinal clash with the traditional view of the employer/employee relationship?

Possibly. There is no point in allowing a flexible working request unless both sides are committed to making it work. Technology has modernised some workplaces: often a laptop and a mobile phone are all that is required for the majority of the working day.



[4] Some employers feel that they are not now in control of their workforce. In some instances granting flexible working when it is requested may not be possible. This could potentially open an employer to further action from the employee. What’s your advice on how to handle situations like this?



There is no reason for employers to feel out of control of their workforce: good and effective organisation is key. If flexible working really does not suit the business’ needs, then the employer is perfectly entitled to reject the request. However, the employer should look at the reason that the request is not suitable. Currently the request can be refused on the following grounds:

• burden of additional costs;

• detrimental effect on ability to meet customer demand;

• inability to reorganise work among existing staff;

• inability to recruit additional staff;

• detrimental impact on quality;

• detrimental impact on performance;

• insufficiency of work during the periods the employee proposes to work;

• planned structural changes.

Whilst there is no scope in the regulations for counter-proposals, employers should bear in mind that they do not have to grant the specific request asked for by the employee but that there might be some middle ground (e.g. a later start time on two days a week rather than every day).

Employers should also be mindful that a failure to entertain an application for flexible working may found more financially significant claims of direct (or more usually indirect) sex discrimination and/or constructive unfair dismissal.

[5] The desire for employees to work for flexible hours and an employers desire to gain the maximum productivity from their workforce can seem to be diametrically opposed requirements. Do you think these two needs can be reconciled in modern businesses?

I don’t personally see the two as being diametrically opposed. It is far less disruptive to a business to have arrangements in place which are predictable than having a series of emergency situations for example when childcare arrangements have failed. Modern businesses often need to be responsive not just in core working hours but also increasingly around the clock. Having happy employees who can balance work and family often goes hand in hand with having a productive work force.

[6] What do you think the future of flexible working looks like? The government seems set to expand and extend the legislation around this area of employment law. How do you think this will impact on small enterprises in particular over the next few years?

We are waiting for the Government’s response to the ‘Modern Workplaces’ consultation to be published, the consultation closed on 31.12.2012.

The Government intends to introduce a new system of flexible parental leave, which will allow parents to share parenting responsibilities. A new right will be created, allowing men to take unpaid leave to attend two ante-natal appointments. A consultation considering the detail of how the new system of flexible parental leave will work will be launched in early 2013.

Finally, the Government is planning to extend the right to request flexible working to all employees from 2014. The current statutory procedure under which employers consider flexible working requests will be replaced with a duty to deal with requests in a reasonable manner, and within a ‘reasonable’ period of time. Acas will produce a statutory Code of Practice on the meaning of ‘reasonable’, which it will consult on in due course.

The proposals aim to give women a clear route back to work after having children and to allow fathers to be more involved in childcare. Small enterprises are often the most flexible workplaces. In my view, small enterprises will continue to lead business in offering flexible working arrangements. Many micro or small enterprises are managed and owned by parents, who are well placed to understand the importance of work-life balance. The main cost for small businesses will be in training and recruitment if a working arrangement requires another employee to cover.

Heather Platt

Pump Court Chambers

5.02.2013

I recently appeared in this case in the Employment Appeal Tribunal for the appellant and was successful. The case will be reported in the ICRs. In the meantime you can read more here.

The case involved costs in the Employment Tribunal. Essentially, the tribunal made comments which amounted to an invitation to the Respondent to apply for costs. The EAT found that the tribunal had expressed a clear view on costs prior to the costs hearing and therefore ought to have recused itself upon the Claimant's application do to so.

Richardson HHJ also gave guidelines to tribunals when dealing with the ability to pay and suggested that tribunals use the county court "means" form: EX 140.

To access a comprehensive library of case reports relating to costs in the Employment Tribunal click here.

[2011] EWCA Civ 797 & [2012] ICR 159

10 June 2011 Laws, Richards, Rimer LJJ

Employment tribunals - Costs - Claimant told untruths - Acting unreasonably - Contribution to respondent's costs - Relevance of claimant's means to the costs order - Rules 40-41.

The claimant worked for the respondent as an agency worker. She claimed that she had been guaranteed a job as a business development officer but was not appointed because before her interview for the job the respondent found out that she was pregnant. The employment tribunal preferred the evidence of the respondent's witnesses on this crucial point and dismissed the claimant's sex discrimination claim.

The respondent applied for its costs on the grounds that the claimant had acted unreasonably in bringing proceedings based on a series of untruths. The employment tribunal took the claimant's means into account, she was unemployed and her statutory maternity pay had ceased, and ordered her to pay £3,000 towards the respondent's costs.

The EAT (the President Underhill J and McMullen J) dismissed her appeals against the costs order but Sedley LJ (paragraphs 25 & 27) gave her permission to appeal to the Court of Appeal because the employment tribunal had made no finding that she had lied to it and therefore he thought it extremely doubtful whether there was unreasonable conduct under rule 40(3). He was also concerned as to how the employment tribunal had arrived at the figure of £3,000 when the claimant was unemployed and temporarily without maternity benefit.

The Court of Appeal decided that when the employment tribunal found that the claimant's assertions were untrue that meant that it considered that she had lied. Rimer LJ said that unless the employment tribunal was making such a finding it was inconceivable that it could have found her conduct unreasonable under the 2004 rules (paragraph 35). Rimer J said that under rule 41(2) the employment tribunal was not obliged to have regard to the claimant's means but having done so it was not confined to ordering an amount that she could pay (paragraph 37).

The following cost cases are referred to in the judgment of Rimer LJ:

Daleside Nursing Home Ltd v. Mathew UKEAT/519/08 (unreported) 18 February 2009.

HCA International Ltd v. May-Bheemul UKEAT/477/10 (unreported) 23 March 2011.

Comment:

The EAT's approach in paragraphs 39-40 of HCA International Limited v. Mrs J L May-Bheemul UKEAT/0477/10/ZT was endorsed by Rimmer J at paragraphs 32-33. Paragraph 40 of HCA included Daleside Nursing Home Ltd v. Mathews [2009] UKEAT/0519/08/RN.

The leading authority on ability to pay was not referred to by the Court of Appeal. Jilley v. Birmingham and Solihull Mental Health NHS Trust (21 November 2007) UKEAT/0584/06/DA & 0155/07/DA, at paragraphs 44-55, sets out the approach that an employment tribunal should follow when applying rule 41(2). If an employment tribunal decides to take into account ability to pay then it should set out its findings about ability to pay and say what impact this has had on its decision on whether to award costs, or on the amount of costs, and explain why. If it decides not to award costs it should also say why.