Not a Fair Cop, Guv

1906 picture of officer arresting womenFollowing the Scottish decision in Vaickuviene a couple of weeks ago, here is an English case on vicarious liability for harassment, which has also failed.

In Allen v Chief Constable of Hampshire Constabulary [2013] EWCA Civ 967, the Claimant brought a claim that the Police Force was vicariously liable for a course of conduct of harassment by a serving Police Officer.

Ms Allen had begun a relationship with a Police Officer, PC Luchesa in 2003 following which another Officer, PC Ridgeway, with whom PC Luchesa had previously been in a relationship is said to have begun a campaign of harassment of Ms Allen.

The campaign waged against both Ms Allen and her children included letters, telephone calls, interference with the her car, an assault on her, arson and criminal damage.

There was some evidence to suggest that PC Ridgeway was guilty of the conduct but it was by no means certain and in spite of an investigation no charges were brought nor was an internal disciplinary investigation pursued.

In her claim, Ms Allen asserted that PC Ridgeway was responsible for the harassment and that the Chief Constable, as her employer was vicariously liable. The claim was struck out by the County Court and the Court of Appeal agreed.

In common with Vaickuviene the critical issue was the extent to which the conduct of PC Ridgeway – even if she were found to be responsible – was sufficiently closely connected to her duties as a Police Officer.

As readers will know by now, vicarious liability – the imposition on an innocent employer of responsibility for the unlawful conduct of its employee – requires the Claimant to show that the unlawful act was sufficiently closely connected to the wrongdoer’s employment and that it is fair to impose liability.

Here, the Court of Appeal agreed with the County Court Judge that there was nothing at all to suggest that the conduct had anything to do with PC Ridgeway’s duties. None of the pleaded facts alleged that PC Ridgeway acted in the purported performance of her police functions.

Had the case been that PC Ridgeway had committed acts while holding herself out as a Police Officer or if it could have been shown that she had used her position and powers as a Police Officer to facilitate the conduct, the result may have been different.

On the facts however, this was not the case and the best Ms Allen could say was this was a course of conduct perpetrated by someone who happened to be a Police Officer. She might as easily worked for a Bank but that would not make the Bank liable.

The case serves as an excellent example of the trite point that an employer is not liable for all the acts of its employees. To establish vicarious liability, it is essential to be able to draw a clear link between the wrongful act or acts and the employee’s work.

Various other issues were raised by the case around the Human Rights Act but they essentially fell away once the claim was approached on the footing that the wrongdoer was a private citizen and there was no basis for responsibility attaching to the Force itself.

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