RBT v YLA provides some valuable insight into when it is time to call it a day - call it a day!
An employee is dismissed, they pursue a claim to Employment Tribunal and lose, and things get out of hand leading to threats made by the employee against the employer.
The employee became a defendant in these proceedings brought under the Protection from Harassment Act 1997 because of emails being sent and WhatsApp messages with threats to publish confidential material to third parties which it was likely to have been found to be blackmail.
Key Legal Findings
The Protection from Harassment Act 1997 creates both criminal offences and civil liability for harassment, which includes alarming a person or causing them distress through a course of conduct on at least two occasions.
On the current evidence, the Claimant is likely to establish at trial that the Defendant's communications amount to harassment and should not be allowed, satisfying the threshold test under Human Rights Act 1998 s.12(3) for granting an interim injunction to restrain publication.
The rule in Bonnard v Perryman, requiring a higher threshold where the main purpose is to protect reputation, does not apply as the nub of the application is to prevent demands with menaces rather than solely protecting reputation.
The Defendant must comply with the mandatory order to provide copies of information obtained from the Claimant's business, as there is no legal basis for retaining documents for anticipated litigation or whistleblowing.
Material Facts
The Claimant is the founder and chairman of an asset management company (the Business).
The Defendant was previously employed by the Business but dismissed before the end of his probationary period, leading to an unsuccessful Employment Tribunal claim by the Defendant.
The Defendant sent emails and messages to the Claimant and individuals associated with the Business, making unwarranted demands for financial compensation accompanied by threats to publicize damaging information, recordings, and to "destroy" the Business if the demands were not met.
The Defendant claims to have covertly recorded conversations, gathered emails and documents from the Business, and conducted surveillance of the Claimant.
The Claimant denies the truth of most of the Defendant's allegations, except for a licensing conviction of one of the Business's companies.
The Law
Bonnard v Perryman [1891] 2 Ch 269 - the rule in this case means that a claimant will ordinarily be unable to obtain an interim injunction to restrain an alleged defamatory publication where a defendant states an intention to raise an affirmative defence. An affirmative defence in defamation is a defence raised by the defendant, asserting that even if the defamatory statement was made, there are justifiable reasons that should exempt the defendant from liability. One such defence is the defence of truth, which requires the defendant to prove that the defamatory statement is substantially true. The rule has been in place since the 1890s. It has been re-affirmed in the Court of Appeal in modern times in Holley v Smyth [1998] 1 All ER 852 and post the Human Rights Act in Greene v Associated Newspapers [2005] 2 WLR 281. The Supreme Court in Khuja v Times Newspapers [2019] AC 161 proceeded on the basis that the rule was good law.
Case law on the interpretation of harassment, including Hayden v Dickenson [2020] EWHC 3291 (QB)
Court Rationale
The Defendant's emails and messages are likely to be found deliberate, oppressive, objectionable, and of sufficient gravity to sustain criminal liability for harassment, targeted at the Claimant persistently and with menaces.
The Defendant's Article 10 rights (freedom of expression) are unlikely to attract weight as his conduct appears to constitute blackmail, an unlawful purpose.
The Claimant's evidence that the allegations are largely false is likely to be established at trial, adding to the oppressive nature of the Defendant's conduct.
Any reasonable person would likely recognize the Defendant's conduct as harassment.
While reputation is a concern for the Claimant, the main purpose is to prevent the Defendant's unwarranted demands with menaces, so the higher Bonnard v Perryman threshold does not apply.
The Decision
The interim injunction prohibiting the Defendant from approaching or communicating with the Claimant and from publishing information about the Claimant and the Business was continued until trial or further order. The Defendant was ordered to comply with the mandatory order to provide copies of information obtained from the Claimant's business.
PW-LA advise, support and guide employees and employers through representing their interests to ensure that even the most aggrieved and upset party know when to call it a day. A dispute between employer and employee can become highly emotionally charged and PW-LA are able to help our clients through these very difficult times.
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