Bullying & harassment in sport: How the Protection from Harassment Act 1997 helps protect athletes & employees

Published 27 April 2018 | Authored by: Nina Goolamali QC

In the last 12 months we have seen a publicity glare surrounding bullying and harassment in sport and media,1 ranging from the #MeToo campaign to complaints by individual athletes about bullying (see by illustration the ongoing Jess Varnish litigation2 against British Cycling, and the paralympian snowboarder Cassie Cava’s complaints3 against British Parasnowsport).

Accordingly, this article reviews the provisions of the Protection from Harassment Act 19974 and explores the extent to which the Act provides rights and remedies to those working in Sport who have been victims of such behaviour. Specifically, it looks at:

  • The Protection from Harassment Act 1997

    • Stated aim

    • The statutory prohibition against harassment

    • Harassment defined

    • Course of conduct

    • Excepted courses of conduct (defences)

  • Can an employer be vicariously liable for harassment under the 1997 Act?

  • Targeted harassment

  • Damages for harassment under the 1997 Act

  • The Act applied in a sports context

The Protection from Harassment Act 1997

Stated aim

The Protection from Harassment Act 1997 (the 1997 Act) came into force on 16 June 1997 and was originally introduced to combat stalking. Indeed, following a targeted consultation on stalking which opened on 14 November 2011, 2 further stalking offences (sections 2A and 4A) were added to the remit of the 1997 Act pursuant to the Protections of Freedom Act 2012.

The 1997 Act is usually cited in the Press when celebrities succeed in obtaining restraining orders against stalkers, one recent occasion being when the Jamiroquai front man Jay Kay felt genuine fear for his safety5 after being targeted by an infatuated fan. However, the 1997 Act in fact deals with a far wider range of behaviour as discussed below.

The statutory prohibition against harassment

Section 1(1) of the 1997 Act provides that a person must not pursue a course of conduct which amounts to harassment of another and which [he/she] knows or ought to know amounts to harassment of the other. There is no need to show that the conduct is discriminatory.

The prohibition of harassment is enforceable by the creation of a criminal offence (sections 2, 2A, 4 and 4A) and a civil remedy (section 3).

Harassment defined

Harassment is not exhaustively defined by the 1997 Act but section 7(2) provides that it includes alarming the person or causing the person distress.

In Majrowski v Guy’s and St Thomas’ NHS Trust,6 Lord Nicholls gave important guidance (at paragraph 30) as to the character of conduct which could constitute harassment in the following terms:

where…the quality of the conduct said to constitute harassment is being examined, courts will have in mind irritations, annoyances, even a measure of upset, arise at times in everybody’s day to day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2.

Baroness Hale said (at paragraph 66):

a great deal is left to the wisdom of the courts to draw sensible lines between the ordinary banter and badinage of life and genuinely offensive and unacceptable behaviour.

The Majrowski approach which placed the primary focus on whether the conduct was oppressive and unacceptableconduct was followed by the Court of Appeal in Veakins v Kier Islington Ltd.7

Course of conduct

Pursuant to section 7(3) of the 1997 Act, a course of conduct must involve…conduct on at least two occasions.” If this minimum number is not met, the claim will fail: see by illustration Dianne Henley v Royal Mail Group (2016).8

Excepted courses of conduct

It should be noted that pursuant to section 1(3) of the 1997 Act, 3 courses of conduct are excepted from the application of section 1(1):

  1. a course of conduct for the purpose of preventing or detecting a crime;

  1. a course of conduct pursuant under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment; and

  1. that in the particular circumstances the pursuit of the course of conduct was reasonable.

Exceptions (a) and (c) are the most commonly litigated. Dealing with exception (a), the Court has made it clear that where it can discern a temporal limit to the purpose of preventing or detecting crime and the course of conduct continues after that point and is held to be harassment, the Act will apply to that tranche of the conduct: see Hayes v Willoughby.9

As to exception (c), this defence most commonly arises in cases of press freedom and engages two Articles of the European Convention of Human Rights (“ECHR”) in particular: Article 8, the right to respect for private life and family and Article 10, the right to freedom of expression.

In Trimingham v Associated Newspapers10, a claim by a press officer for harassment under the 1997 Act was dismissed on the basis that her affair with a married MP limited her expectation of privacy, the public were entitled to know whether they could trust the married MP who was a leading politician and how his personal life would affect the business of government. Furthermore, those photographs and comments made about her by the paper did not objectively amount to harassment.

In the recent case of Barbara Hewson v Commissioner of Police of the Metropolis11, Mr Justice Dove held that the issue of a prevention of harassment letter (PHL) to Ms Hewson (a practising barrister) did not breach her rights under ECHR Article 8 or Article 10 and was not procedurally unfair. It had been justified by reference to the ingredients of the offence of harassment set out in section 1 of the 1997 Act. The letter had been issued by the police following an online dispute which Ms Hewson had been involved in with another barrister (the complainant) who had alleged among other things that the various tweets posted by Ms Hewson on twitter plus other e mails sent to her chambers were abusive.

 

Can an employer be vicariously liable for harassment under the 1997 Act?

The short answer following Majrowski is “yes”. Neither the terms nor the practical effect of the 1997 Act indicated that Parliament intended to exclude the ordinary vicarious liability and accordingly an employed could be vicariously liable in damages under the 1997 Act for a course of conduct by one of its employees which amounted to harassment.

 

Targeted Harassment

The harassment in question must be “targeted at an individual” see Thomas v News Group Newspapers.12 However, the Court of Appeal in Levi & Levi v Bates, Leeds Football Club & Yorkshire Radio Ltd13 held that the ability to bring a harassment claim to application of the 1997 Act was not just restricted to the individual targeted by the course of conduct complained of but extended to other persons who were foreseeably and directly harmed by the course of conduct. This is a significant decision which could allow close family members to the targeted individual to benefit from the protections offered by the 1997 Act.

 

Damages for harassment under the 1997 Act

If the statutory tort set out in section 1(1) is proved, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.” (section 3(2)) and damages for injury to feelings are the primary remedy.

As is clear from the language of this section, the Court’s power to award damages is discretionary and the Court should not make such an award if it was awarded elsewhere to avoid double recovery, a particular consideration to bear in mind in the case of a concurrent personal claim based on the same facts: see Lyon v Ministry of Defence,14 which followed Green v DB Group Services (UK) Ltd.15

Section 7(2) states that references to harassing a person includes alarming the person or causing the person distress.

The award for general damages for injury to feelings is calculated in the same way as for similar damages recovered in the Employment Tribunal for harassment or discrimination at work. The Court of Appeal in Vento v Chief Constable of West Yorkshire16 sets out three guidelines bands for damage. The top band is appropriate for the most serious cases such as a lengthy campaign of harassment, the middle band reflects serious harassment falling short of the severity of the top band and the lower band is appropriate for less serious cases.

Relevant factors include the number of incidents, the duration of the campaign, the nature of the incidents (were they verbal or written harassments or did they comprise physical acts or threats to personal safety) and the effect on the victim.

It is important to note that nothing in the statutory language of the 1997 Act imports an additional requirement of foreseeability of the injury or loss sustained by the Claimant. Once a section 1(1) breach is proved, the Defendant is responsible in damages for the injury and loss which flowed from that conduct: Jones & Lovegrove v Ruth & Ruth.17

 

The 1997 Act applied in a sports context

At first blush, it may seem surprising that the 1997 Act has not been prayed in aid more widely in sports cases. However, one ready explanation for this is the availability of civil remedies arising out of the victim’s employment contract. So for example the former Chelsea FC team doctor, Ms Eva Carneiro issued a claim for sex discrimination, harassment and constructive dismissal in the employment tribunal rather than pursue a separate claim under the 1997 Act.18

That said, the 1997 Act has a number of characteristics which make it suitable for wider deployment in the sports context:

  1. There is a limitation period of 6 years so if the dispute cannot be resolved by other means or relevant facts only come to light after published findings of an independent review into alleged wrongdoing in a Sport, the victim has sufficient time to make a claim. This limitation is considerably more generous than the 3-year period given for stand-alone personal injury claims and the usual period of 3 months to make a claim for unfair dismissal in the employment Tribunal.

  1. The criminal and civil offences contained with the 1997 Act gives a range of remedies and relief to the victim not available elsewhere. The criminal remedies in particular can provide a strong disincentive to future breaches;

  1. The wide definition of harassment allows for far greater range of behaviours to constitute harassment under the 1997 Act. Contrast the position under the Equality Act 2010 which more narrowly defines harassment.

  1. There does not have to be an employment context for the 1997 Act to be engaged and even if there is an employment context to the alleged harassment, there is no need to show that the conduct in question is discriminatory as this is not part of the test;

  1. Given that Sport is dominated by the use of social media to ventilate views and influence public opinion, those subject to harassment on these platforms can pray in aid the 1997 Act.

  1. The 1997 Act gives those targeted the added comfort of knowing that the statutory protection can also be extended to those close family members affected the harassment. This can be particularly important where social media users or the Press exceed the threshold of the Article 10 Freedom of Expression.

It is therefore highly likely that with the raised consciousness of bullying and harassment in sport that the 1997 Act with its range and flexibility will experience a renaissance in the coming years and become a more frequently used tool in sports litigation.

 

This is an extract from the Safety & Participation chapter of the LawInSport & BASL Sports Law Yearbook 2017/18. To obtain a full copy of the Yearbook, which contains 10 chapters and over 50 articles like this from the industry’s leading sports lawyers, please visit our website: https://sportslawyearbook.uk/

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About the Author

Nina Goolamali

Nina Goolamali QC

SILK: 2017 CALL: 1995

Described as “one of the most knowledgeable and personable barristers around”, who is “supremely intelligent” and “just keeps getting better”, Nina has a very well established practice in Sports Law. She took silk in 2017 and is ranked as a Tier 1 Barrister in Sport in the Legal 500 2017.

Nina is highly regarded as a skilled, commercially astute and sensitive advocate and negotiator in complex multi-million pound cases arising in sports disputes.

Nina leads the 2TG Sports Team and has been described in Chambers & Partners as a “sports expert”. She is praised in the Legal 500 for having “unwavering tenacity and determination to get the right result for the client” and “an impressive level of technical knowledge.”

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