Employment law

By Martin Edwards, Mace & Jones, Liverpool

Bullying at workWaters v Commissioner of Police of the Metropolis (2000) IRLR 720A woman police constable alleged that a colleague subjected her to a serious sexual assault.

She reported this to superiors, but following an internal enquiry, no action was taken against the colleague.

She alleged that from that time on, she was subjected to harassment, unfair treatment and victimisation by other police officers, which led to ill-health, including mental illness and post-traumatic stress disorder.

She brought two sets of proceedings, a complaint of sex discrimination and a negligence claim.

The former claim was dismissed on the ground that the alleged perpetrator was not acting in the course of his employment: (1997) IRLR 589.

The negligence claim was struck out by the High Court on grounds that it disclosed no reasonable cause of action.

The Court of Appeal upheld that ruling on the basis that the commissioner was not under a personal duty of care to a police officer under his direction and control, equivalent to an employer's duty to provide a safe system of work, not to cause foreseeable injury to her.

The court said that there are well established policy reasons which prevent any duty of care between a chief officer of police and officers under his direction and control from having such scope.

This finding was appealed and the House of Lords unanimously allowed the appeal.

The negligence claim should not have been struck out.

It was not plain and obvious that no duty of care could be owed to the woman constable by the commissioner on the facts as alleged or that, if there was such a duty, the facts could not amount to a breach.

If an employer knows that acts being done by employees during their employment may cause physical or mental harm to a particular colleague, and does nothing to supervise or prevent such acts when it is within his power to do so, it is clearly arguable that he may be in breach of his duty to the victim.

He may also be in breach if he can foresee that such acts may happen and if they do, that physical or mental harm may be caused to an individual.

If sexual assault by a colleague is alleged and a complaint pursued, it is arguable that it can be foreseen that retaliatory steps may be taken against the complainant and that she may suffer harm as a result.

Even if this is not necessarily foreseeable at the beginning, it may become foreseeable to those in charge that there is a risk of harm and that some protective steps should be taken.

Lord Hutton acknowledged that it might be that, on full investigation at the trial, the allegations would be shown to be groundless or exaggerated.

But assuming they were true, he considered that this was not a case in which the claim should have been struck out as disclosing no reasonable cause of action or as being frivolous or vexatious or an abuse of the process of the courts.

He acknowledged, however, that 'it is not every course of victimisation or bullying by fellow employees which would give rise to a cause of action against the employer, and the employee may have to accept some degree of unpleasantness from fellow workers.

Moreover, the employer will not be liable unless he knows or ought to know that the harassment is taking place and fails to take reasonable steps to prevent it'.

But the allegations in this case were serious and known to senior officers in the chain of command leading to the commissioner.