Employment law

By Martin Edwards, Mace & Jones, Liverpool

Local authority employmentMoores v Bude-Stratton Town Council (2000) IRLR 676This intriguing constructive dismissal case saw the president, Lindsay J, out-voted by his lay colleagues.

For several years, a back-bench local government councillor had accused a council employee of dishonesty.

Following one incident in 1995, councillors were reminded that they must not give orders to council staff or make direct criticisms to them and the employee was reminded that the council was his employer, not individual councillors.

In 1998, an incident occurred in which the councillor subjected the employee to verbal abuse and accusations of dishonesty in front of work colleagues.

He resigned because of the councillor's lack of trust and confidence in him.

The mayor told him and others that the back-bench councillor was out of order and she was later censured.

A tribunal rejected the employee's unfair dismissal claim, but on appeal, the majority of the EAT ruled in his favour.

Individual councillors are under a duty not to engage in conduct likely to undermine the trust and confidence required in the council's employment contracts.

If that duty is breached, the council is vicariously liable.

No individual councillor is a free agent operating on his own behalf.

Common sense demands, according to the majority, that councillors cannot be held to have responsibilities for recruitment and dismissal but not for the employment contract.

It is not possible for a council to detach itself from the actions of councillors in the workplace which have an impact on the ability of an employee to execute his contract of employment.

Lindsay J disagreed.

A back-bench councillor is not obliged, simply by reason of membership of the council, not to destroy or seriously damage the relationship of confidence and trust between the council and its employees.

But even if such a duty did exist, a council is vicariously liable for a breach by an individual back-bencher.

Vicarious liability does not exist when the wrongdoer is 'on his own business'.

In determining whether a wrongdoer is on his own business, similar questions arise as in determining whether a person is employed rather than, for example, self-employed.

No single factor is likely to be determinative but together the relevant factors should provide a composite from which it can be judged whether vicarious liability exists.

In this case, the council had not authorised the back-bencher to speak to the employee.

It had only a limited ability to actually control her activity and discipline her, and had no particular reason to foresee any unjustified attack by her on the employee.

There was no finding of persistent indifference by the council to the risk of wrongdoing, no chronic failure to try to control it, and no finding of the harm that ensured as having been foreseeable in advance of its happening.

The editor of the IRLR regards the majority's decision as 'the right outcome', but arguably it is an illustration of the principle that hard cases make bad law.