Supreme Court Rules Employers Have No Duty To Protect Employees’ Interest In Third-Party Litigation.

In James-Bowen and others v Commissioner of Police of the Metropolis [2018] UKSC 40, [2018] All ER (D) 143 (Jul), the Supreme Court held that a police commissioner did not have a duty to protect police officers from reputational and economic harm resulting from a civil claim based on the police officers’ alleged misconduct.

The case sprang from an incident where an alleged terrorist claimed he was injured when the respondent police officers arrested him. The complainant issued civil proceedings against the police commissioner. The police commissioner settled the claim, agreeing to pay damages, making a public admission of liability, and apologising for the ‘gratuitous violence’ to which the complainant had been subjected at the hands of the officers. They were subsequently each charged with criminal assault but were all acquitted.

The officers brought a claim for damages for the reputational, economic, and psychiatric damage born from the way the police commissioner handled the civil claim and the subsequent settlement.

The case was struck out at first instance.

However, the Court of Appeal held the appellant had a contractual and tortious duty, arising as part of the implied duty of trust and confidence, not to participate in actions in the course of legal proceedings which may destroy or seriously damage the relationship of trust and confidence between employer and employee without reasonable cause.

The Supreme Court rejected this conclusion on the basis it would give rise to a conflict of interest between employers and employees and would lead to significant practical difficulties for an employer trying to defend a civil claim. In addition, imposing such a duty on an employer would run contrary to the public policy that litigants should generally be able to avail themselves of the processes of litigation (through early settlement), without the fear of this leading to fresh claims.

Although the appeal was successful, it provides a reminder that employers should still have regard to the effects litigation and/or internal/external investigations may have on employees. We can advise you on balancing the need to consult and ensuring the best interests of your organisation are protected.

Please get in touch if you would like to discuss any issues.