Waters v Commissioner of Police of the Metropolis [2000] IRLR 720

Employers may face negligence claims if they fail to deal adequately with sexual harassment, following the decision in the recent case of Waters v Commissioner of Police of the Metropolis.

This case concerned a police woman who was raped by a fellow officer in police residential accommodation. She reported the assault to her superiors but after an internal enquiry no action was taken against the male officer.

She subsequently suffered further harassment and victimisation from her colleagues. This included being ostracised, left with no support in emergency situations, having unfair reports written about her; being excluded from duties she should have been carrying out and being advised to leave the police force.

She lodged a claim in the employment tribunal on the grounds that being excluded from duties amounted to victimisation in breach of s 4 (1) (d) of the Sex Discrimination Act 1975. In addition, she also pursued a civil action claiming that the Commissioner of Police had acted negligently in failing to deal with her complaint that she had been sexually assaulted by a male colleague, and had caused or permitted other police officers to harass and victimise her.

The Employment Tribunal, Employment Appeal Tribunal and the Court of Appeal dismissed her complaint of sex discrimination on the grounds that the alleged perpetrator was not acting in the course of his employment. In the civil action for negligence the Court of Appeal also dismissed the case and held that the Commissioner did not owe a duty of care to police officers under his control equivalent to that of an employer.

Ms Waters then appealed the negligence, but not the discrimination claim to the House of Lords. The Lords considered that while the courts have accepted that the police may not be sued for negligence in respect of their activities in the investigation and suppression of crime, that did not apply where there was an employment relationship.

In particular, a person employed under an ordinary contract of employment can have a valid cause of action against her employer both in negligence and breach of contract if the employer fails to protect her against victimisation and harassment which causes both physical and psychiatric injury.