Introduction
The relationship between an employer and employee is governed by a complex mix of common law duties and statutory rights. For decades, the courts in England and Wales have grappled with the tension that arises when these two sources of law intersect, particularly at the sharp end of the employment relationship: dismissal. The House of Lords' decision in Johnson v Unisys Ltd (2001) established a significant principle, often termed the 'Johnson exclusion zone', which prevents employees from bringing a common law claim for damages arising from the manner of their dismissal. This was done to preserve the coherence of the statutory scheme for unfair dismissal. However, the later House of Lords ruling in Majrowski v Guy’s and St Thomas’ NHS Trust (2006), which confirmed that employers could be held vicariously liable for harassment under the Protection from Harassment Act 1997 (PHA 1997), has had a significant impact on this exclusion zone. This essay will argue that while Majrowski does not abolish the Johnson principle, it has created a large and important statutory gateway that allows employees to bypass the exclusion zone in cases where the employer's conduct amounts to harassment. It has therefore limited the practical effect of Johnson and provided a valuable alternative route for redress.
The Creation of the Johnson Exclusion Zone
To understand the impact of Majrowski, it is first necessary to explain the principle it affects. The ‘Johnson exclusion zone’ originates from the House of Lords decision in Johnson v Unisys Ltd (2001). Mr Johnson was dismissed from his job in a humiliating way, which he claimed led to a nervous breakdown. He brought a claim at common law for damages, arguing that his employer had breached the implied term of mutual trust and confidence in the manner of his dismissal. The House of Lords rejected his claim. Lord Hoffmann, giving the leading judgment, reasoned that Parliament had created a detailed and comprehensive statutory code to deal with unfair dismissal in the Employment Rights Act 1996 (ERA 1996). This statutory regime provided for specific remedies, including compensation, but this compensation was capped. To allow an employee to bring a parallel common law claim for damages for the manner of their dismissal, which was not subject to a cap, would "be to permit the employee to side-step the statutory system" (Johnson v Unisys Ltd, 2001, para 57). The court therefore held that the implied term of trust and confidence could not be used to claim damages for losses resulting from the fact of dismissal itself.
This created an 'exclusion zone' around the act of dismissal. The boundary of this zone was later clarified in Eastwood v Magnox Electric plc (2004). In that case, the House of Lords confirmed that the exclusion zone only applied to the dismissal itself. If an employee had a pre-existing cause of action at common law which had accrued before the dismissal process started (for example, a claim for psychiatric injury caused by bullying during the course of employment), they could still pursue that claim. The exclusion zone was "an island, not a peninsula" (Harvey on Industrial Relations and Employment Law, para 339), meaning it only covered the dismissal and not the entirety of the employment relationship leading up to it. However, this distinction was often difficult to apply in practice, as poor treatment and the dismissal process are frequently intertwined.
The Statutory Tort of Harassment and Majrowski
The legal landscape was changed significantly by the introduction of the Protection from Harassment Act 1997 and its subsequent interpretation by the courts. The PHA 1997 was originally conceived to deal with stalking, but its broad wording meant it could apply in many different contexts, including the workplace. The Act creates a statutory tort of harassment, which is defined in section 7 as a course of conduct which a person knows or ought to know amounts to harassment of another, causing alarm or distress. A course of conduct must involve at least two occasions (s.7(3)).
The key question that came before the House of Lords in Majrowski v Guy’s and St Thomas’ NHS Trust (2006) was whether an employer could be held vicariously liable for harassment committed by one of its employees against another. Mr Majrowski alleged that he had been bullied and intimidated by his departmental manager. The employer argued that the PHA 1997 was a self-contained statute and did not provide for vicarious liability. The House of Lords disagreed. Lord Nicholls, giving the leading speech, held that there was a "well-established principle of law that, unless a statute expressly or by necessary implication provides otherwise, a statutory obligation or a prohibition gives rise to a civil action for damages" (para 6). The court found no reason to exclude the common law doctrine of vicarious liability. Therefore, an employer is liable for harassment committed by an employee in the course of their employment.
The Impact of Majrowski on the Exclusion Zone
The decision in Majrowski has had a profound impact on the Johnson exclusion zone by providing employees with a powerful tool to circumvent it. The Johnson principle prevents common law claims arising from the manner of dismissal. However, a claim under the PHA 1997 is not a common law claim; it is a claim for a breach of a statutory duty. The logic of Johnson, which was based on not undermining a statutory scheme (the ERA 1996), cannot be used to defeat a claim brought under a different statutory scheme (the PHA 1997).
Therefore, if the conduct leading up to, and including, the dismissal can be framed as a "course of conduct" amounting to harassment, the employee can bring a claim against their employer for damages under the PHA 1997. This claim is not barred by the Johnson exclusion zone. This allows for a claim to be brought in situations where it previously would have failed. For instance, if a manager engages in a campaign of intimidation and unfair criticism to force an employee out, culminating in a dismissal, this conduct could be viewed as a single course of conduct amounting to harassment. Under the Johnson and Eastwood principles, it would be difficult to separate the pre-dismissal conduct from the dismissal itself, and the claim for psychological injury might have been excluded. After Majrowski, the whole pattern of behaviour can be used to found a claim under the PHA 1997, effectively bypassing the common law restriction.
This provides a more advantageous route for claimants in several respects. The damages available under the PHA 1997 are not capped, unlike compensation for ordinary unfair dismissal. Damages can be awarded for anxiety and financial loss caused by the harassment. This makes a harassment claim a much more attractive proposition for an employee who has suffered significant psychological harm as a result of their treatment.
The Limits of the Majrowski Bypass
It is important, however, not to overstate the impact of Majrowski. It has not abolished the Johnson exclusion zone, which remains good law for common law claims. The Majrowski route is only available where the stringent requirements of the PHA 1997 can be met. This is a significant hurdle. A claimant must be able to prove a "course of conduct", meaning at least two separate incidents of harassment. A single, one-off act of dismissal, however unpleasant, will not be sufficient.
Furthermore, the conduct must be serious enough to be considered "oppressive and unacceptable" (Hayes v Willoughby, 2013). The ordinary stresses and strains of workplace management, including robust performance reviews or disciplinary procedures, will not typically amount to harassment. The courts are careful to distinguish between genuine harassment and legitimate, even if firm, management action. As such, not every employee who feels they have been unfairly dismissed will be able to formulate a successful claim under the PHA 1997. The Majrowski bypass is a specific path, not a wide-open highway, and it is only available to those whose ill-treatment meets the high statutory threshold for harassment. For claims based on negligence or a breach of the implied term of trust and confidence that does not amount to statutory harassment, the Johnson exclusion zone remains a formidable barrier.
Conclusion
In conclusion, the decision in Majrowski v Guy’s and St Thomas’ NHS Trust has significantly impacted the practical application of the Johnson exclusion zone. By confirming that employers are vicariously liable for the statutory tort of harassment, the House of Lords created a crucial alternative route for employees seeking redress for mistreatment connected to the termination of their employment. This statutory route is not blocked by the Johnson principle, which was designed to protect the integrity of the unfair dismissal scheme from encroachment by the common law. The Majrowski decision therefore allows employees who can prove a course of conduct amounting to harassment to claim uncapped damages, even where the conduct is intertwined with the dismissal process.
However, the impact of Majrowski should be seen as a targeted circumvention rather than a complete demolition of the Johnson exclusion zone. The exclusion zone still operates to bar common law claims, such as those based on negligence, that relate to the manner of dismissal. The path created by Majrowski is only accessible if the high threshold for statutory harassment under the PHA 1997 is met. Nevertheless, its impact has been to rebalance the relationship, providing a remedy for some of the most serious forms of workplace misconduct and ensuring that the Johnson principle is not an absolute shield behind which employers can act with impunity.
References
Deakin, S. and Morris, G.S. (2012) Labour Law. 6th ed. Hart Publishing.
Eastwood v Magnox Electric plc [2004] UKHL 35, [2005] 1 AC 503.
Hayes v Willoughby [2013] UKSC 17, [2013] 1 WLR 935.
Johnson v Unisys Ltd [2001] UKHL 13, [2003] 1 AC 518.
Majrowski v Guy's and St Thomas' NHS Trust [2006] UKHL 34, [2007] 1 AC 224.
Malik v Bank of Credit and Commerce International SA (in compulsory liquidation) [1997] UKHL 23, [1998] AC 20.
Protection from Harassment Act 1997.
Employment Rights Act 1996.
