Mr Marinello complained that, while he was employed by the Council, two of his superiors had subjected him to almost daily abuse and criticism and he brought an action under The Protection from Harassment Act 1997.  Section 8 of the PHA, which applies in Scotland, provides that a person must not pursue a course of conduct which amounts to harassment of another.  A course of conduct has to involve conduct on at least two occasions.  To establish a course of conduct, Mr Marinello relied on incidents that occurred during 2004 and 2005 before he went on long-term sick leave in September 2005.  His claim also relied on a final incident some seventeen months later, in March 2007 that took place outside work while he was absent on sick leave.  Because he did not bring his action until September 2008, his claim would have been out of time if he could not rely on the last incident as forming part of the course of conduct.

The Council argued there was a difference between the original incidents and the last one as they took place at different times, in different places and different circumstances.  They could therefore not form part of a course of conduct.  This, they said, meant that his claim was out of time.

The Court of Session followed the decision of the Court of Appeal in the recent case of Iqbal v Dean Manson Solicitors and held that the proper approach in deciding whether a course of conduct amounts to harassment is to look at the course of conduct as a whole rather than to assess each of the individual incidents relied upon.  An interval of 17 months did not automatically exclude the incidents being connected.  There was also little significance to the fact that the last incident occurred in public and the previous incidents had been in the workplace, especially as Mr Marinello's workplace was, in fact, frequently a public place (supervising offenders performing community service).  Equally although he was on sick leave at the time of the last incident, he was still employed by the Council in the same department and under the supervision of the same managers.  The Court of Session held that his claim should be allowed to proceed to a full hearing so that the court could determine at a hearing of all the evidence whether the March 2007 incident formed part of the course of conduct.

Impact on Employers

• This decision again highlights that conduct which at the time it occurs may not appear sufficient to amount to harassment under the PHA may be deemed in retrospect to have formed part of a course of conduct amounting to harassment when taken together with other behaviour.  Employers should ensure that policies and advice to staff about inappropriate conduct covers this potential pitfall.  
  
• An employee on long-term sick leave is still an employee.  Conduct policies should remind staff that normal good standards of behaviour apply whether or not the employee is in the office or absent on sick leave.