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Employment Law

Legal guidance - compliance - software

29 MAY 2015

When an employee is a witness in a claim involving their employer can they bring a claim if their employer does not take steps to protect their interests?

When an employee is a witness in a claim involving their employer can they bring a claim if their employer does not take steps to protect their interests?
Joanne Oliver
Associate, Veale Wasbrough Vizards

The High Court has struck out claims brought by four police officers that the Metropolitan Police Commissioner had not implemented measures to protect them in the course of civil proceedings.

In James-Bowen and others v The Commissioner of Police for the Metropolis, a suspected terrorist commenced civil proceedings against the Commissioner of Police for the Metropolis (the Commissioner) on the basis that four police officers had assaulted him during the course of his arrest. Disciplinary charges were brought against the officers but subsequently dismissed.

The four police officers were to be witnesses in the civil proceedings. At a conference with counsel, the officers were informed that they would not be required to give evidence unless special measures were put in place to protect their identities. The officers were also told that the Commissioner's legal team would vigorously defend the claim and would protect their interests.

The application for special measures to protect the officers' identities failed and the officers therefore refused to give evidence at trial. The claim was settled by the Commissioner for damages and costs, with an admission of liability in respect of the 'gratuitous violence' and an apology to the terrorist suspect. The officers were criticised in a press release issued by the Commissioner for their refusal to give evidence from which it could be inferred that they had something to hide. The officers were later acquitted at a criminal trial in relation to the same incident when recorded evidence came to light which supported their version of events.

The officers issued proceedings against the Commissioner on the basis that he had negligently caused them psychiatric injury and had failed to take reasonable care of their health, safety, welfare and reputational interests. A claim of misfeasance in public office was included in this action.

The High Court found that the Commissioner had not been negligent and had not assumed responsibility for the officers' interests. In striking out the claim, the Court highlighted a number of reasons:

  • the officers had not been parties to the civil claim brought by the suspect against the Commissioner and the Commissioner had not sought any contribution from them. They had attended the conference with counsel as witnesses, not as clients.
  • the officers did not have a direct interest in the litigation and the fact that there were consequential impacts on their reputations was insufficient to create such an interest. The Commissioner was therefore under no legal obligation to have regard to or safeguard their interests.
  • the officers did not have any real prospect of proving that it had been reasonable unforeseeable that the Commissioner's breaches of duty might have caused psychiatric injury.
  • the officers had failed to plead a number of essential components of the tort of misfeasance in public office.
Best practice

Although the officers were unsuccessful in their actions, this case serves to show the potential conflicts of interests for public sector employers when their employees are called as witnesses in legal proceedings or public inquiries. Whilst at the outset all concerned may have a common purpose and certain assurances may be given to the employee that their interests will be protected as the proceedings go on the interests of the parties may diverge and the employer could find themselves vulnerable to claims by an employee if those assurances are not honoured. Employers should therefore be circumspect when it comes to offering assurances to witnesses and should give consideration to the potential implications if their action could prove detrimental to the health or reputation of a witness.
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