Employer found vicariously liable for historic abuse by an independent physician

In the case of Barclays Bank plc v Various Claimants the Court of Appeal has upheld the High Court’s finding that Barclays Bank was vicariously liable for historic acts of abuse by an independent physician that the Bank had appointed to examine job applicants. This case further supports the principle that a court does not require a “traditional employment relationship” to establish vicarious liability.  

Facts

In this case, 126 women sought damages against Barclays Bank plc (the “Bank”) alleging that they had been sexually assaulted by Dr Gordon Bates (now deceased), during mandatory medical examinations they were required to undergo as a condition of current or future employment between 1968 and 1984.

Dr Bates, who was regularly referred to as ‘the Bank’s doctor’, received payment from the Bank for every examination, which was conducted in a consulting room in his house. The Bank provided Dr Bates with pro-forma examination forms headed with the Bank’s logo and entitled “Barclays Confidential Medical Report”. If the report was satisfactory, an offer of employment was made. Dr Bates also conducted pre-employment checks for other companies and worked at local hospitals.

In the High Court, the question of whether the Bank could be held vicariously liable for Dr Bates’ actions was heard as a preliminary issue. The Bank asserted that Dr Bates was a self-employed independent contractor and completely independent from the Bank, meaning they could not be held liable for his actions. The High Court disagreed, concluding that the Bank was vicariously liable. The Bank appealed.  

Decision

The Court of Appeal upheld the High Court’s judgment. This case followed the approach taken in other recent Supreme Court decisions where it has been established that, when considering whether an employer is vicariously liable for the actions of an independent contractor, a two-stage test should be applied. The questions which should be asked are:

1. Is the relevant relationship one of employment or “akin to employment” and;
2. If so, was there a sufficiently close connection between the action of the independent contractor and the position for which they were employed.

In this case the judge considered that these tests had been satisfied and that the Bank’s relationship with Dr Bates was one “akin to employment”. He went on to determine that there was a “sufficiently close connection” between the assaults and the activity Dr Bates had been engaged to undertake. The medical examination was consequently viewed as having been “part of the activity of the Bank”. The judge therefore concluded that it was just and fair in this case to impose vicarious liability on the Bank.

Comment

The Court of Appeal’s decision confirms that employment status is not a decisive factor when considering whether to hold a party vicariously liable for the acts of another. Employers should therefore undertake proper checks when appointing independent contractors and throughout their relationship, so far as they are able; to ensure that they are qualified, competent, compliant with any regulatory duties and are not abusing their position.