Marinello v City of Edinburgh Council [2011] CSIH 33

The Protection from Harassment Act 1997 allows victims of harassment to obtain non-harassment orders with a view to preventing further incidents and also to obtain civil remedies such as damages for anxiety or financial loss caused as a result of such harassment.

Mr Marinello was employed by City of Edinburgh Council as a Community Service Assistant. The role required him to supervise offenders who were sentenced to community service. During 2004 and 2005 he was subject to verbal abuse and criticism from his superiors which resulted in him being off on long term sick leave from 2005 with a depressive disorder. In 2007 a further incident occurred when Mr Marinello encountered one of his senior colleagues whilst walking down a road. The colleague in question was driving a van and proceeded to drive it straight towards Mr Marinello whilst making a rude gesture towards him.

Mr Marinello then brought an action under the Protection of Harassment Act 1997 seeking damages for the harassment he had endured. Under section 8 of the 1997 Act a person “must not pursue a course of conduct which amounts to the harassment of another”. Due to the time constraints involved in such actions if the last incident concerning the van was not considered as part of a “course of conduct” Mr Marinello would have been too late in bringing his action.

However, the Court of Appeal held that when dealing with the 1997 Act the courts should look at the course of conduct as a whole rather than considering the incidents relied on individually. The court held that although 17 months had passed between the previous incidents and the last incident relied on it could not automatically be excluded as forming a part of a “course of conduct”. The court also took the view that, although Mr Marinello’s employment was often held in public places the fact that the last incident was in a public place and others were in the work place was of little significance and that Mr Marinello, although on sick leave, was still an employee of the Council.

The decision in this case means that employers should be aware, and make employees aware, of the possibility of incidents being retrospectively considered as amounting to a course of conduct. Employers should also remind staff that when a person is on sick leave they are still an employee and conduct towards them should be in keeping with company policies on behaviour towards staff.