Gillian Rushbury: Employers’ duty of care may have to go further

Gillian Rushbury is a partner and head of the Glasgow office at BLM.
Gillian Rushbury is a partner and head of the Glasgow office at BLM.
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SOMETIMES the ways in which an employer should care for its employees are very obvious. Measures such as taking reasonable care to ensure workers have the right protective clothing, company vehicles are in good working order and any hazardous materials are handled safely are well-established.

Vicarious liability, where an employer can become liable for the acts or omissions of their employees, is also a fairly well-known – if perhaps developing – legal concept.

But does an employer owe a duty of care to its employees in the conduct of the defence of civil litigation based on vicarious liability?

This particular question came before the UK Supreme Court this year (JB and others v Commissioner of Police of the Metropolis, UKSC, 25 July 2018). Its judgment could have implications for how schools, care homes and other employers defend themselves against accusations of abuse made against past, present or future members of staff.

In 2003, four Metropolitan Police officers were involved in arresting a suspected terrorist, referred to as “BA”. He accused the officers of seriously assaulting and injuring him during the arrest and, the following year, [2004] the Independent Police Complaints Commission (IPCC) decided a disciplinary charge relating to the use of excessive force should be brought against one officer.

Although the disciplinary charge was dismissed within months, the IPCC had already made public the identities of the officers, leading to threats of serious violence against them and their families on a website which supported BA. In 2007, BA sued the Met’s Commissioner in a civil case, claiming he was vicariously liable for the actions of his officers.

The officers claimed the Commissioner’s legal team initially told them that BA’s claims would be “vigorously defended” and that they were also acting for them and in their interests before later telling them they were only acting for the Commissioner. In 2009, on the third day of the hearing on the evidence in BA’s civil case, an out of court settlement was reached between BA and the Commissioner. That settlement included “an admission of liability and an apology for ‘gratuitous violence’ to which BA had been subjected by the officers”. This, and a press release, was, as the officers saw it, “tantamount to endorsing their culpability”, which they continued to deny.

In 2011, all four officers were acquitted in a criminal court. They then began civil proceedings against the Commissioner seeking compensation for “reputational, economic and psychiatric damage” caused by the way BA’s civil case was settled. Their case included an argument that the Met owed them “a duty to take reasonable care to safeguard their safety, health, welfare (including economic and professional welfare) and reputational interests in the preparation and conduct of the defence of BA’s claim”.

A judge struck out the officers’ claims in 2015 but, later, they were successful on the duty of care argument in the Court of Appeal. The Commissioner appealed to the Supreme Court.

The Supreme Court unanimously (5:0) allowed the Commissioner’s appeal. In the Supreme Court’s analysis, the officers were trying to extend a duty of care to a new situation. The court decided the law should proceed “incrementally and by analogy with previous decisions” when considering whether a duty of care arises in a previously untested area. In this case, the “imposition of the claimed duty would not be fair, just or reasonable”. So, the officers’ civil claims were struck out.

This decision will be considered highly persuasive in Scotland.

One area in which this judgment could be of particular note is civil proceedings arising from accusations of abuse. If an abuse survivor was to bring a case against – say – an independent school, social club, care home or other institution claiming it was vicariously liable for the actions of one or more of their former or continuing employees, this decision could be seen as setting ground rules on the employer/employee relationship in the context of any defence or settlement proposal which the employer may wish to advance.

The Supreme Court’s judgment is also of wider significance because it has the potential to influence the ways in which employers throughout the UK and their insurers deal with vicarious liability claims.

Gillian Rushbury is a partner and head of the Glasgow office at BLM