Although an employer owes a duty of care to their employees, the Supreme Court has held in James-Bowen and ors v Commissioner of Police of the Metropolis that a police commissioner does not owe a duty of care to protect the reputation of her officers when involved in litigation with a third party who has alleged that those officers assaulted him.
Basic facts
In December 2003, four Met police officers arrested a suspected terrorist known only as BA. He subsequently alleged that the officers had seriously assaulted him during the arrest. After their identities were made public, they and their families received threats of violence from a group that supported BA.
In October 2007, BA brought a civil claim alleging that the Commissioner was vicariously liable for the assaults. On the third day of the trial, the Commissioner admitted liability, apologised for the “gratuitous violence” inflicted on BA by her officers and agreed compensation. After the trial, the Commissioner issued a press release saying that there would be an investigation into why the officers had refused to give evidence.
The officers brought claims against the Commissioner in September 2013 alleging that she had breached the duty to take reasonable care to safeguard their economic and reputational interests (among other things) when she was preparing her defence to BA’s claims and during the process of settling them. Instead she had issued a press release which, they argued, was “tantamount” to saying they were to blame. In effect, the officers (although they were officer holders, not employees) were relying on the analogy of the implied term of trust and confidence in employment contracts.
Decisions of lower courts
The High Court judge struck out their claims on the basis that, as they were not parties to the litigation between the Commissioner and BA, she was not required to consider what impact the outcome might have on their reputations.
The Court of Appeal upheld the appeal in part by concluding that it was arguable that she owed a duty to the officers during the conduct of the litigation in terms of safeguarding their economic and reputational interests. The Commissioner appealed.
Decision of Supreme Court
Relying on the case of Calveley v Chief Constable of Merseyside Police, the Supreme Court pointed out that if a chief constable does not owe a duty of care to the reputation of their officers when undertaking an investigation or disciplinary proceedings against them, there seemed no reason to assume they owed a duty when defending a claim brought against them by a third party.
In any event, as there was a potential conflict of interest between an employer being sued by a third party for the wrongful conduct of their employees and those employees, it would not be fair, just or reasonable to impose a duty of care on that employer to protect the reputational interests of those employees.
Considerations relating to legal policy and the practical conduct of proceedings also weighed heavily against allowing an extended duty. Employers have to be free to defend claims in whatever way they see fit without constantly have to think about whether they may be exposed to a claim by their employees.
Finally, it rejected the argument that because both the officers and the Commissioner had a common interest in the outcome of the claim, the officers could have had access to documents that would otherwise have attracted legal privilege. Instead, it held that “something more” than a shared interest in the outcome of litigation was needed before common interest privilege could be used in the way that the officers had proposed.
It therefore upheld the appeal.