126 people recently brought claims against Barclays following historic sexual assaults perpetrated by a doctor engaged by the bank. Between 1968 and 1984 Barclays used Dr Gordon Bates, an independent contractor, to perform pre-employment medical examinations. Some of the candidates Barclays sent to Dr Bates were only 16 years old.
Whilst Dr Bates was only a consultant, and not an employee, the High Court ruled that Barclays was still liable to compensate the victims. The judge admitted this was an unusual case as, under normal circumstances, companies are not vicariously liable for the acts of consultants. A number of factors led to the High Court's ruling, including:
- The examinations were carried out purely for the benefit of Barclays and were a part of Barclays’ business activities;
- Barclays gave Dr Bates detailed instructions about the nature and extent of the examinations and provided a Barclays branded assessment form to complete;
- A number of the youngest victims were not chaperoned during the examinations, which were performed at Dr Bates’ home;
- Dr Bates’ insurance would not cover deliberate sexual assaults, whereas Barclays would have a means of being able to compensate the victims.
This is a potentially worrying case for any business that regularly engages doctors or occupational health specialists to carry out medical examinations for them. In order to mitigate the risk of a similar finding, we have the following recommendations:
- consider whether a medical assessment is strictly necessary, particularly for young people or vulnerable adults;
- ensure all young or vulnerable adults are chaperoned during examinations;
- assess the suitability of the location of an examination – a doctor’s house is not advisable;
- give individuals being examined a choice of practitioners to visit;
- avoid creating an unusually close relationship with any individual practitioners.