In James-Bowen v. Commissioner of Police of the Metropolis, the Supreme Court held that an employer does not owe a duty to its employees to protect them from economic or reputational harm as to the manner in which vicarious liability proceedings are conducted.
Vicarious liability involves an employer being liable for the wrongs committed by its employees where there is a sufficient connection between those wrongs and the employment.
In this case, an individual made a claim against the Commissioner alleging vicarious liability for the acts of her officers during the course of an arrest.
The claim settled at trial with the Commissioner admitting liability and issuing an apology for "gratuitous violence" on the part of her officers. The relevant officers claimed, among other things, breach of duty in contract and tort as to the manner in which the Commissioner had defended the individual's claim.
Although police officers are not employees with a contract of employment, the Court considered the analogous position of employees in these circumstances and held that the implied term of trust and confidence does not include a duty on the employer to conduct litigation in a manner which protects its employees from economic or reputational harm.
The Court then considered whether such a duty arose in tort and whether it would be fair, just and reasonable to impose such a duty.
The Court recognised that, in cases involving vicarious liability, the employer's interests may be fundamentally different from those of the employee. It is the employer who will bear the cost and effort of defending proceedings. On the other hand, the predominant interest of an employee will be that his reputation should be vindicated. The Court considered that it should be open to an employer to take its own view as to the reliability of the employee and how it considers the employee would perform as a witness.
Further, the Court found that other public policy considerations relating to the conduct of litigation weighed heavily against imposing such a duty. Parties in dispute should be free to conduct litigation without fear of incurring liability to third parties. Imposing such a duty could impede settlement and lead to additional delay, disruption and expense in defending such proceedings.
So, the upshot is that employers can clearly focus on their own interests in the stance they take in defending a claim based on vicarious liability, without being concerned that what they consider they should say or concede, in that litigation, about the conduct of their employees, will give rise to a claim by those employees.
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