In James Bowen and others v Commissioner of Police of the Metropolis the Supreme Court considered the effect of the implied duty of trust and confidence in relation to the conduct of litigation by an employer or quasi employer. The Court concluded that the implied duty did not mean that the Police Commissioner owed a duty to her police officers, in the conduct of proceedings against her as vicariously liable for their alleged misconduct, to take reasonable care to protect their economic and reputational interests.
Four officers in the Metropolitan Police took part in the arrest of a suspected terrorist. The suspect later claimed that he had been seriously assaulted and injured by the police officers during the course of his arrest.
The suspect brought a civil claim against the Police Commissioner alleging that she was vicariously liable for the officers’ actions. The police officers were not defendants in the action. The Commissioner settled the claim during the trial with an admission of liability in relation to the officers’ alleged conduct, an apology for “gratuitous violence” and compensation, despite the fact that an internal investigation and the CPS had concluded that there was no case to answer.
The officers were subsequently prosecuted but were acquitted of assault occasioning actual bodily harm. The officers brought claims against the Commissioner as their quasi-employer, alleging breach of contract, negligence and misfeasance in public office arising from the manner in which the Commissioner had defended the suspect’s claim. The officers sought compensation for reputational, economic and psychiatric damage.
The Commissioner applied for the claims to be struck out but the Court of Appeal permitted the officers’ appeals on the issue of the Commissioner’s duty of care to safeguard their economic and reputational interests and its extension to the conduct of litigation by the Commissioner. The Court of Appeal accepted that the Commissioner’s primary duty was to protect the police service but did not consider that the duty conflicted with the duty asserted by the officers. The Commissioner appealed to the Supreme Court.
The Supreme Court unanimously allowed the appeal. The officers argued that the duty of care relied on was a manifestation of the duty of trust and confidence implied into contracts of employment. Police officers hold public office and are not employees but the officers argued that the relationship between the Commissioner and the officers was analogous to that of an employment relationship. The Supreme Court ultimately concluded that the proposed duty of care would not be fair, just or reasonable.
This is a useful judgment showing that employers do not need to take reasonable care to protect the economic and reputational interests of their employees when defending claims. This is a decision based partly on public policy as having such a duty would discourage settlements and would be likely to give rise to delay, disruption and satellite litigation.
Notwithstanding this, employers would be well advised to still consider the impact of the conduct of litigation which affects their employees from an employee relations perspective.