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organisations owe no duty to staff when responding to claims

26 July 2018

Organisations frequently face claims based on or relating to allegations against their workforce. In Bowen v Commissioner of Police for the Metropolis, the Supreme Court have confirmed that members of the workforce aggrieved by the way in which such claims are defended or settled are not entitled to pursue a claim against their employers on this basis.

The decision related to a claim by police officers in relation to the manner in which the Commissioner had dealt with a claim arising from alleged misconduct by the officers. The officers sought damages for reputational, economic and psychiatric damage.

Lord Lloyd-Jones gave detailed consideration to the arguments for and against extending negligence to this novel area and concluded that imposition of a duty of care would not be appropriate. Though the case related to police officers, he approached the case by examining analogous obligations owed by employers to employees. This decision can be expected to have wider application where claims arise from allegations against an organisation’s workers.

The decision recognises the importance of leaving organisations free to litigate in a way which reflects their evidence, risk appetite and business priorities, without fear that their decisions will give rise to claims.

While this is welcome, it resolves only part of the complex decision making process needed when dealing with workers and ex-workers in the course of litigation. Turnover of staff is becoming an increasing concern in a much more flexible employment market. Aside for the potential for claims, organisations must be mindful of their relationship with their workforce, and their reputation as an employer which can have significant impact in areas such as engagement, retention and recruitment.

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