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Receding Confidence in Trust and Confidence?

Document Cited in Related
Vincent
Author
Published date01 September 2019
Date01 September 2019
DOI10.3366/elr.2019.0578
Pages411-417
INTRODUCTION

Although given the moniker of a “portmanteau obligation” by Lord Nicholls in Malik v BCCI,1 there are undoubtedly limits to the operational capacity of the implied term of mutual trust and confidence in employment law. The decision of the Supreme Court in James-Bowen v Commissioner of Police of the Metropolis 2 may have slipped under the radar in light of the more recent decision of the Court of Appeal in Uber BV v Aslam 3 and the publication of the Secretary of State for Business, Energy and Industrial Strategy's Good Work Plan4 (responding to Matthew Taylor's 2017 review).5 But it is a salutary reminder of that reality. It provides a corrective to accounts of the implied term that bristle with over-confidence in extolling its worker-protective virtues and properties. In this way, it is a judgment that acts as something of a rejoinder to those commentators (including Lord Justice Elias recently writing extra-judicially6) who have heralded it is as transformational and one of the most important common law developments in the field of labour law in recent years.

Having outlined the facts of, and decision in James-Bowen, I will discuss the implications of the case as a judicial precedent, before going on to analyse its wider impact on the common law. What does appear beyond dispute is that James-Bowen adds another layer of complexity to what is an already intricate landscape.

 THE FACTS OF <italic>JAMES-BOWEN</italic>

In James-Bowen, four police officers serving with their employers, the Metropolitan Police Service (“MPS”), participated in the arrest of a suspected terrorist. The individual concerned (“BA”) alleged that the employees had used excessive force and that he had been severely assaulted and injured. After BA's complaints were investigated and largely dismissed by the MPS's Directorate, BA raised civil proceedings against the MPS alleging that it was vicariously liable for the conduct of the four officers in the law of tort. When the claim came before trial, each of the officers refused to give evidence without special measures being put in place. Immediately thereafter, the Commissioner of the MPS settled BA's claim and paid damages of £60,000 and legal costs. However, more importantly, liability was admitted to BA accompanied by a written apology which expressed remorse for the “gratuitous violence” he had suffered at the hands of the four officers. The Commissioner of the MPS also issued a press release which stated that the circumstances surrounding the arrest of BA had been referred to the Independent Police Complaints Commission and that an investigation was being held into the refusal of the four officers to give evidence at the trial. Naturally, the four police officers felt that the MPS as their employer had effectively “thrown them under the bus”: the written statement and press release seemed to endorse their culpability. The employees subsequently raised a claim against the Commissioner of the MPS seeking compensation for reputational, economic and psychiatric damage. They alleged that the MPS owed them a duty of care in tort and concurrently under the implied term in mutual trust and confidence in contract to safeguard their health, safety, welfare (including professional and economic welfare) and reputational interests in respect of the manner by which the MPS had conducted the defence to BA's claim and in any settlement or compromise of such proceedings. It has long been established that police officers hold a public office and are not employees.7 However, it should be noted that the Supreme Court was prepared to treat the...

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