UK: Supreme Court Confirms Employers' Duty Of Care To Employees Does Not Extend To The Conduct Of Litigation

Last Updated: 4 September 2018
Article by Herbert Smith Freehills

The Supreme Court has held that where an employer is sued on the basis that it is vicariously liable for the acts of its employees, it does not owe those employees a duty to defend the proceedings in such a way as to protect their economic or reputational interests: James-Bowen & Ors v Commissioner of Police of the Metropolis [2018] UKSC 40.

The court considered that to recognise such a duty would amount to an extension of employers' previously recognised duties. It unanimously concluded that it would not be "fair, just and reasonable" to impose it – either as a standard implied term in employment contracts or as a concurrent tortious duty.

In particular, given that the interests of an employer and employee in such circumstances will often be in direct conflict, the court considered that to impose such a duty would potentially stifle an employer's defence of claims and would require it to "constantly look over its shoulder" for fear of exposing itself to claims by employees that the defence should have been run differently.

The decision provides welcome reassurance for any employer (or quasi-employer, as in this case) facing claims based on the alleged wrongdoing of its employees, particularly where fraud or other serious wrongdoing is alleged and there is potential for the employees to face public criticism. Notably, the decision is not limited to rejecting a particular formulation of the proposed duty but appears to be a wholesale rejection of any suggestion that an employer's general duty to its employees restricts it in any way from defending such proceedings in whatever manner it thinks best to serve its own interests.


The underlying litigation concerned an allegation by a terrorist suspect that he had been seriously assaulted in the course of his arrest. He brought a personal injury claim against the Police Commissioner as vicariously liable for the actions of the police officers involved.

During the course of the trial, the Commissioner settled the claim on terms that admitted most of the allegations and included a public apology. The officers were subsequently charged with criminal offences arising out of the arrest but were acquitted. They then commenced proceedings against the Commissioner claiming that both the manner in which the action was defended and the terms on which it was settled had caused them economic, reputational and psychiatric damage.

Amongst several bases relied on, the officers argued that the Commissioner's common law duty of care as their employer or quasi-employer (based on the accepted legal position that police officers are in a quasi-employment relationship with the Commissioner) included a duty to protect their interests in conducting the litigation. Specifically, they relied on the analogy of the standard implied term in employment contracts of mutual trust and confidence between employer and employee, and the recognised concurrent tortious duty to the same effect.

The High Court struck out all of the claims as unarguable. On appeal, the Court of Appeal upheld the rejection of several of the bases relied on but held that it was arguable (to the level required to proceed to trial) that the Commissioner's general duties as a quasi-employer did extend to protecting the officers' economic and reputational interests in the conduct of the litigation. (See our post on the Court of Appeal decision here.)


The Supreme Court allowed the appeal, finding that no such duty should be imposed.

The court proceeded on the basis that the question turned on the scope of an employer's tortious duty, given that any implied contractual term could not extend further than a concurrent duty in tort. As to that tortious duty, the court accepted that to recognise the duty for which the officers contended would amount to extending an employer's duties beyond those established in previous cases. Accordingly, it was necessary to consider the question by reference to legal policy considerations. Specifically, the court considered whether the imposition of such a duty met the third limb of the test laid down in Caparo v Dickman [1990] 2 AC 605 – that it be "fair, just and reasonable" to impose the duty. (It was accepted that it was clearly arguable the parties met the other two limbs, namely that harm was foreseeable and that, by virtue of their quasi-employment relationship, there was a sufficiently proximate relationship).

Key to the court's rejection of the duty was its observation that there are "stark differences" between the interests of an employer and its employees in such litigation. While it is not necessarily fatal to the recognition of a duty that it would give rise to conflicting duties, the court considered that the extent of the conflict here strongly suggested that it would not be fair, just or reasonable to expect an employer to protect the interests of its employee in this situation. Further, the court rejected as "unrealistic" a suggestion that the potential for conflict could be overcome by recognising a duty of care up to the time at which an actual conflict of interests arose, at which point "timeous notification" by the Commissioner could result in the duty of care ceasing to apply. The court considered that the potential for conflict was too great to permit such a compromise and there was no justification for imposing on an employer the burden of keeping under review at each stage of the proceedings the question whether an actual conflict had arisen.

The court was also influenced by policy considerations regarding the practical conduct of proceedings. These included a perceived risk that such a duty could inhibit the conduct of defences, result in delays and disruption to proceedings (through disputes between employees and employers as to the best way to conduct the defence and through employers needlessly prolonging proceedings as a protective measure), discourage settlement and prompt a proliferation of satellite litigation, including challenges to the outcome of decided cases.

Further, the court accepted that the practical impact on an employer's legal professional privilege was an additional factor weighing against the recognition of such a duty. In order to defend proceedings brought by employees and demonstrate that there was in fact no breach of duty, the employer might have to waive privilege in relation to its conduct of the original claim. This could, however, undermine the effective conduct of its defence of that original claim, in that the possibility of a subsequent claim in negligence and the likelihood of having to waive privilege could well inhibit frank discussion between the employer and its legal advisers. (Although the officers argued that common interest privilege would have entitled them to access the Commissioner's privileged material in any event, the court rejected this, noting that something more than a shared interest in the outcome of litigation is required before common interest privilege can be used in this manner as a 'sword' against the owner of the privilege.)


In summary, the decision is a clear and comprehensive rejection of the suggestion that employers need to factor into their defence of such litigation any requirement to protect or have regard to the relevant employees' economic or reputational interests. In the court's view, an employer in that situation "should be entitled to defend the claim in the way he sees fit, notwithstanding that his employees will or may as a result be subjected to public criticism during the trial process".

It is important to note that the decision is not limited to cases where the employer in question performs a law enforcement role similar to that of the Commissioner, or even any other public role. While the court did observe that the Commissioner's role as a public officer "adds a further dimension to this appeal", it seems clear from the judgment that this was noted as merely adding weight in this case to the court's observation that the interests of an employer and employee in vicarious liability claims will often be in direct conflict. The balance of the court's reasoning does not turn on the Commissioner's public role and the conclusions are clearly expressed as applying to employers and employees (or those in a quasi-employment relationship) generally.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions