The case of Various Claimants v Barclays Bank plc concerned 126 claims of sexual assault made by a doctor instructed to carry out medical examinations of prospective job applicants to the bank as an independent contractor.
Applicants to Barclays Bank were required to have medical assessments to ensure they were medically capable of working in a bank and to assess their availability for life assurance. Between 1967 and 1984 Dr Gordon Bates was instructed by the bank to carry out some of these assessments in his home, during which time all of the alleged assaults took place. Dr Bates passed away in 2009 so the Claimants commenced proceedings against Barclays alleging that it was vicariously liable for the actions of the medical examiner it instructed.
The court applied a two stage test: i) was the relationship one of employment or “akin to employment”; and ii) were the assaults sufficiently closely connected to the employment or quasi-employment. After applying this test, the court held that the bank could be held vicariously liable for the actions of Dr Bates.
When applying the first stage of the test, the court assessed the five criteria set out in the case of Catholic Child Welfare Society and Other v Various Claimants (2012). The aim of these criteria is to identify policy reasons that would make the finding of vicarious liability fair, just and reasonable. These criteria are:
- When the employer is more likely to have the means to compensate the victim than the individual and can be expected to have insured against that liability;
- When the alleged act has been committed as a result of an activity being taken by the individual on behalf of the employer (in this case, the medical examinations);
- When this activity is likely to be part of the business activity of the employer;
- When the employer, by engaging the individual to carry on the activity, will have created the risk of the act committed by the individual; and
- The individual will, to a greater or lesser degree, have been under the control of the employer.
The court gave greater emphasis to the middle three criteria rather than the first and last points. After assessing them, the court found that the bank had put the applicants at risk of harm by sending them to Dr Bates and that his activity of performing medical examinations was done so on behalf of the company.
The second part of the test is most relevant, from an employment law perspective, as Dr Bates was not an employee of the bank but a consultant. However, the court held that the alleged sexual assaults occurred during a medical examination which was required as part of present or future employment with the bank. On top of this, the examinations were entrusted to Dr Bates by the bank who did not give the Claimants the opportunity to choose their examiner. Because of this, the court found that the assaults were so closely linked to the employment that the second stage was satisfied.
What does this mean for you or your business?
The scope of vicarious liability has been extended by this case. Employers are more readily being found guilty of the actions of those outside of the usual employer-employee relationship. This is being seen by some commentators as the beginning of the end for independent contractors as their responsibilities and liabilities are becoming more similar to those normally associated with employees.
It is worth noting that this decision is open to appeal. The court placed a large amount of emphasis on the fact that Dr Bates was now deceased and that the only source of compensation for the Claimants was therefore against the bank. The court also ignored the bank's argument that, had Dr Bates been alive, he would have had the means to pay the compensation requested by the Claimants. It therefore appeared that the bank was being punished for the Claimants’ delay in bringing a claim.
What do you need to be doing now?
Employers should protect themselves from possible claims of this nature by ensuring they have the correct processes in place, investigating complaints fully and, in situations similar to the one in this case, considering offering the employee their choice of medical practitioner.
Having said that, Barclays Bank did follow most of these procedures and was clearly unaware that Dr Bates was allegedly assaulting the applicants who were being sent to him. Because of this, the recent case shows a worrying expansion on the concept of vicarious liability for employers.