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Some thoughts on malice

Little use is made of potential criminal sanctions for harassment in the workplace. It may provide assistance when advising afflicted employees and employers should understand both the risks it creates as well as its possible use in controlling toxic employees.

The problem

For a long time there has been a problem for employees subjected to harassment or bullying who have no protected characteristic. If employment is to continue unfair dismissal does not come into play and many of the other theoretical remedies are usually too cumbersome or difficult to be practicable; for example, the requirement to provide a safe working environment under the Health and Safety at Work Act 1974 or a personal injury action. This article suggests that in some cases the criminal law may offer an answer.

Protection from Harassment Act
First there is the PHA, which was enacted to deter stalkers and had nothing at all to do with employment. But, in the words of Professors Smith and Baker, it ‘was so vague and broadly drafted that nothing excludes it from that area either’. No resignation is required; either civil or criminal proceedings are available; the employer may be vicariously liable; there is a sixyear time limit; damages are available for ‘anxiety’ and there is no defence for an employer that reasonable steps were taken to prevent the behaviour.

A course of conduct is required: conduct must occur on at least two occasions and the incidents must not be too distant. Some judges have sought to insist that because there is a potential for criminal liability, even in a civil claim for damages a standard of proof akin to that required for a crime is required, though this is still the subject of judicial disagreement.

Malicious Communications Act
Second, for written harassment or bullying, there is another potential remedy. S.1 MCA applies to communications that are grossly offensive, indecent, obscene, menacing or false, provided there is in each case an intention to cause distress or anxiety. The offence is committed by the act of sending, delivering or transmitting, so this does not require the message to reach the intended recipient.

The section expressly applies to ‘electronic communications’. There must be a number of cases where bullying or harassing emails will come within this definition. One message could be sufficient.

In deciding whether to prosecute the Crown Prosecution Service guidelines make clear that two tests have to be passed: there must be sufficient evidence to provide a realistic prospect of conviction; and a prosecution is required to be in the public interest so that prosecution has to be necessary and proportionate.

When it comes to deciding whether a communication is ‘indecent or grossly offensive’ there is one of those judicial interpretations that is much quoted but is on reflection not a great help. In Connolly, Dyson LJ observed that the words ‘are ordinary English words’ which were ‘not used in a special sense’. This was to counter an argument that s.1 did not apply to communications that were of a political or educational nature.

This implies that interpretation is to be left to the ordinary magistrate or judge on the Clapham omnibus to make up their own mind whether the words come into that category and those deciding whether to prosecute have to adopt the same approach.

Of particular relevance to employment lawyers is the same judge’s remark that the protection definitely applies to communications sent to people in their workplace. The word ‘grossly’ applies only to communications that are offensive.

For all elements the sender has to want to cause distress or anxiety ‘to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated’. Accordingly, this could cover those to whom an email was copied, as well as an addressee and even those who could be expected to be told about the content.

Communications Act 2003
Third, under s.127 of this Act anyone who sends a message that is grossly offensive or is of an indecent, obscene or menacing character (other than in the course of providing a programme service) via a public electronic communications network, or who causes such a message or matter to be sent, is guilty of an offence.

There is a similar prohibition on false messages sent by the same means. For this offence it is unnecessary to prove a particular intent.

According to the Information Commissioner a public electronic communications network is any transmitter or transmission system used to convey electronic signals. This could be a wired or a wireless network; for example, a network of phone cables or a mobile phone network. It does not include private or restricted networks, only networks used by service providers that have members of the public as customers.

It was made clear in Chambers that the offence can occur using Twitter and, it seems, would also apply to such services as Facebook or LinkedIn.

Constraints
Given the millions of messages sent by email, social media prosecutors are inevitably going to be cautious. Also in some circumstances Article 10 of the European Convention on Human Rights (freedom of expression) may be engaged. However, in many employment cases there will be arguments that the constraint on freedom may be justified. There may also be arguments about the degree to which the public interest is engaged.

Practical application
The bar may appear be high but nearly all cases in an employment context will have a specific victim and there will often be clear evidence of an intention to cause distress or anxiety. In such cases the CPS urges a careful weighing of the effect on the victim and whether a prosecution would be in the public interest.

The allegation of a criminal offence could provide the first element of a qualifying disclosure, with the added risk that, if the police did decide to prosecute, then one must be getting close to the requirement of public interest being satisfied and the well-advised employee may well say that is the case.

This is not an everyday remedy but there will be circumstances where a reference to potential criminal sanctions (together with the possibility of vicarious liability) will persuade a previously reluctant management to act to restrain the conduct.

All the employee has to do is point out the existence of the criminal options and say that he or she would much rather the issue was resolved in house rather than visit the police station to concentrate the mind of the human resources department. Moreover, this may be welcomed by HR if the perpetrator is a serial offender.

The possibility of police involvement and an accusation of having put the business at risk of seriously bad publicity may assist in persuading management, at long last, to discipline someone who previously was regarded as ‘untouchable’.

The threat may also be a useful argument to encourage active support from the top to make the anti-harassment or bullying policy something real rather than just another piece of paper.

Connolly Connolly v DPP [2007]1 All ER 1012
Chambers Chambers v DPP [2012] EWHC 2157 (Admin)

This article was first written for and published by the ELA.

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This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.

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