by Laurie Anstis on March 20, 2013
Most employment lawyers will come across the Protection from Harassment Act 1997 at some point in their professional careers. The Act created for the first time a criminal offence of harassment and, alongside that, a civil cause of action in respect of which damages or an injunction might be granted.
Although not part of mainstream employment law, the Act can have implications in the employment context, where there may be allegations of harassment brought by either the employee or the employer.
The Act contains a general exception that actions that would otherwise amount to harassment will not count as harassment if they were done “for the purpose of preventing or detecting crime“. Presumably this was originally intended to prevent criminals from suing the police for harassing them, but it has wider implications than that.
Those implications arose in the case of Hayes v Willoughby – a case in which an employer alleged that a former employee of one of his companies had been harassing him. To quote from the judgment of Moses LJ in the Court of Appeal:
“Throughout a period of seven years between 2002 and 2009 the respondent, Mr Willoughby, had waged what the judge described as “on any view, a lengthy and persistent campaign of correspondence and investigation”. This included allegations of fraud and embezzlement communicated to the Inland Revenue and to Customs & Excise, to the Criminal Investigation Branch of the DTI, to Companies House, to the Official Receiver and to several different Police forces. The Official Receiver alone estimated that he had received 400 communications about the claimant, Mr Hayes, from the defendant … [the trial judge found that] this course of conduct exceeded “even the widest limits of reasonableness and became unreasonable and excessive””
It was admitted that this conduct (which included other more personal harassment of the claimant) would amount to harassment, but the defendant relied upon the defence that the harassment was for the purpose of preventing or detecting crime.
Although the authorities had found no basis for the allegations, the trial judge found that the defenant genuinely believed in the allegations that he was making. The trial judge considered that that defence was made out, and so he had no power to stop what would otherwise have been considered harassment. At the Court of Appeal, Moses LJ concluded that the defence did not apply, as it:
“is confined to a course of conduct the purpose of which is preventing or detecting crime. There is no reason to protect a defendant whose course of conduct constitutes harassment because one of the purposes is the prevention or detection of crime unless his course of conduct was reasonable” (Moses LJ’s emphasis)
Delivering the leading judgment, Lord Sumption rejected the idea that either a wholly objective or wholly subjective test should be applied in determining “the purpose”. Instead, he found that “the necessary control mechanism is to be found in the concept of rationality”:
“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 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 processes. 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. For the avoidance of doubt, I should make it clear that, since we are concerned with the alleged harasser’s state of mind, I am not talking about the broader categories of Wednesbury unreasonableness, a legal construct referring to a decision lying beyond the furthest reaches of objective reasonableness.
Before an alleged harasser can be said to have had the purpose of preventing or detecting crime, 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. If he has done these things, then he has the relevant purpose. The court will not test his conclusions by reference to the view which a hypothetical reasonable man in his position would have formed.
The effect of applying a test of rationality to the question of purpose is to enable the court to apply to private persons a test which would in any event apply to public authorities engaged in the prevention or detection of crime as a matter of public law. It is not a demanding test, and it is hard to imagine that Parliament can have intended anything less.”
In the particular circumstances of the case:
“The judge’s findings of primary fact, fairly read, mean that after June 2007 Mr Willoughby’s vendetta against Mr Hayes was more than objectively unreasonable. It was irrational. His persistence was obsessive. He was no longer guided by any objective assessment of the evidence of Mr Hayes’s supposed criminality and there was no longer any logical connection between his supposed purpose and his acts.
It follows that Mr Willoughby cannot, in the sense meant by section 1(3)(a) of the Act, be regarded as having had that purpose or of having been guided by it.”
The concept of “rationality” seems to be a useful one to be applied in this situation, although as a legal concept it was new to me. I wonder if we will see wider attempts to apply “rationality” outside this conext – for instance, in the law on whistleblowing or public interest disclosures?