Given the family's claim (Vaickuviene and others v J Sainsbury plc) has been brought under the UK-wide Protection from Harassment Act 1997 (PHA) it could have HR implications on both sides of the border.
The background to the case is as follows: Lithuanian born Roman Romasov wrote a grievance to his line manager complaining about racist remarks from colleague Robert McCulloch, an alleged BNP supporter, two days before his murder. Nothing was done but on 15 April 2009 McCulloch became aggressive again and later stabbed Mr Romasov to death in an aisle - a crime for which he has now been criminally convicted.
Romasov's family argue that through its inaction Sainsbury's bears some responsibility for the murder. They say his line manager crucially missed the chance to summon McCulloch to a disciplinary meeting, whereby the eventual perpetrator might have been dismissed, suspended, or moved to a different shift. They are relying in their claim on the House of Lords' decision in the English case of Majrowski v Guy's & St Thomas's NHS Trust, whereby it was held that an employer can be vicariously liable under the PHA for harassment committed by an employee in the course of employment.
Sainsbury's, on the other hand, sought to have the family's claim dismissed by arguing that there was not sufficiently close connection between McCulloch's act and his employment to render Sainsbury's responsible. Essentially, this was a personal dispute, not a matter sufficiently connected to McCulloch's employment to merit an employer's liability trial, they maintained.
The court decided not to summarily throw out the family's claim. Hence the matter now proceeds to a full hearing. Of particular relevance to HR practitioners is that Sainsbury's failure to act on Mr Romasov's complaint strongly influenced the court's decision not to dismiss the claim out of hand. The court noted that the chain of events that led to Romasov's murder began with verbal harassment, of which the supermarket was fully aware, and culminated in homicide. It also considered that the final act of McCulloch could potentially be regarded as an outcome of the way in which the employer chose (not) to respond to internal complaints, thus raising the possibility of allowing liability to fall on Sainsbury's shoulders. The court made no ruling on this but left it to the final hearing to make a determination of the issue.
In conclusion this case may be extreme but can only re-emphasise that, for all employers, dealing promptly with harassment is absolutely vital. One simply cannot know how harassment, bad enough even in its "mildest forms", may end up. We will have to wait several more months for the final ruling clearly but meantime, it is not unreasonable to expect that the Romasov trial will be deeply embarrassing for Sainsbury's and its reputation as a responsible employer. And other organisations might want to start dusting off their harassment complaints procedure and manager training programmes to be prepared for the event of an adverse judgment.
HR practitioners should also be aware of the effect of the PHA generally, which can be used to bring claims against employers for up to six years after the harassment complained of, as opposed to the three month limitation for harassment claims brought under the Equality Act 2010. It doesn't require psychological damage to be proved - "mere" distress and anxiety will suffice. The PHA, designed to deter stalkers, is increasingly being used to target employers.
Martin Pratt (pictured) is an employment lawyer with Kingsley Napley
