Independent Contracting - Extension of Vicarious Liability in Sexual Assault Case
It is well known that an employer can be vicariously liable for the acts of its employees.The High Court has recently considered whether or not a company was vicariously liable for the acts of an independent contractor.
Various Claimants v Barclays Bank plc
A group of 126 claimants sought damages against Barclays Bank plc (Barclays) in respect of the alleged behaviour of a doctor, Dr Bates, who was commissioned by Barclays as an independent contractor to carry out medical assessments and examinations on prospective applicants and employees between 1968 and 1984. Dr Bates is alleged to have sexually assaulted each of the claimants, a majority of whom were teenagers at the time. Dr Bates died in 2009.
Following a police investigation in 2013, it was concluded that there would have been sufficient evidence to pursue a prosecution against Dr Bates, had he still been alive. The claimants subsequently brought a claim against Barclays, asserting that it was vicariously liable for the actions of Dr Bates.
The Legal Test
There is a two stage test to establish vicarious liability:
- Is the relationship one of employment or 'akin to employment'?
- If so, were the acts sufficiently closely connected to that employment or quasi-employment?
The Court's Decision
Barclays denied vicarious liability for any assaults committed by Dr Bates on the basis that he was an independent contractor. However, the High Court disagreed and found in the claimants' favour.
The High Court concluded that the relationship between Dr Bates and Barclays was akin to employment. For example:
- The bank exercised control over Dr Bates' activities and directed the claimants to him.
- The examinations carried out by Dr Bates were solely for the benefit of Barclays.
- Barclays was responsible for creating the level of risk that assaults would occur - the claimants were often 15 or 16 years old and were sent on their own to Dr Bates' home to be examined.
The High Court also found that the assaults were closely connected to the work Barclays had asked Dr Bates to carry out.
Finally, the High Court held that it was fair, just and reasonable to impose vicarious liability on Barclays, since this was the claimants' sole legal recourse.
What Does It Mean for Employers?
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You can be held vicariously liable for the conduct of independent contractors.
- You should ensure that where prospective applicants and/or employees are referred to occupational health or other medical service providers, appropriate safeguards are put in place. For example, where very young workers will undergo a physical examination, chaperones may be used and the individual given the option to elect a physician of the same sex.