Vicarious liability for alleged sexual assaults carried out by independent contractor
Various claimants v Barclays Bank Plc [26.07.17]
The High Court finds an employer vicariously liable for alleged sexual assaults carried out by a GP engaged as an independent contractor to examine staff.
This decision is an unwelcome development for employers, and reinforces the positon that the lack of a traditional contract of employment with the tortfeasor is not necessarily a bar to a finding of vicarious liability, which can have far-reaching consequences. Employers who outsource functions, which could hypothetically give rise to similar issues, may want to review such arrangements.
The claim was brought by 126 employees of Barclays Bank (Barclays) in respect of alleged sexual assaults carried out by Dr Bates, a self-employed GP who was instructed to undertake employee medical examinations on behalf of Barclays between 1968 and 1984.
The preliminary issue for the court to consider was whether Barclays was vicariously liable for the alleged sexual assaults carried out by Dr Bates during these examinations.
The claimants argued that Barclays failed to carry out suitable checks on Dr Bates and was vicariously liable for Dr Bates’ actions, which occurred in the course of compulsory examinations at Barclays’ request. Furthermore, it was argued that Dr Bates’ relationship with Barclays was “akin to employment”.
It was Barclays’ case that Dr Bates was a self-employed, independent contractor. The assessments took place at a consulting room in the doctor’s own home and the examinations undertaken by Dr Bates were not part of Barclays’ business. Dr Bates also undertook medical examinations for several other organisations.
The court looked at the relationship between Dr Bates and Barclays and applied an initial two-stage test.
Stage 1: Was the relevant relationship one of employment or “akin to employment”?
Stage 2: Was the tort sufficient closely connected to that employment/quasi employment?
In determining stage 1, Mrs Justice Davies followed the five policy criteria identified in Catholic Welfare Society  and Cox :
- Is the employer (Barclays) more likely to have the means to compensate the victim than the tortfeasor (Dr Bates) and can be expected to have insured against that liability?
There was no recourse against Dr Bates (who died in 2009 and his estate exhausted) and Barclays would have the means to compensate the claimants.
- Was the tort committed as a result of an activity being undertaken by the tortfeasor on behalf of the employer?
Dr Bates was chosen as Barclays’ doctor and Barclays required prospective employees to be examined by him (the claimants had no choice of an alternative doctor). Barclays arranged the appointments and the reports completed by Dr Bates contained Barclays’ logo. Davies J concluded that Dr Bates’ work was for the benefit and on behalf of Barclays.
- Was the tortfeasor’s activity likely to be part of the business activity of the employer?
The purpose of the pre-employment medical examinations was to enable Barclays to be satisfied that its workforce was, health-wise, capable. Dr Bates’ assessments were for the benefit of Barclays, not the employee concerned and therefore were part of the bank’s business activities.
- Did the employer, by employing the tortfeasor, create the risk of the tort being committed by the tortfeasor?
Barclays directed the claimants (mainly young females) to be examined by the doctor at his home and directed the doctor to undertake physical examinations. In these circumstances Davies J found that Barclays did create the risk of the tort allegedly committed by Dr Bates.
- Was the tortfeasor under the control of the employer?
Barclays directed Dr Bates as to the questions to ask and the physical examinations to be carried out. Davies J found that the fact that Dr Bates also worked for other organisations did not negate the fact that Barclays exerted sufficient control.
In respect of stage two of the test, the Davies J found that as the alleged sexual assaults took place in the course of the medical examination for which Barclays required the claimants to undergo and which Dr Bates was entrusted, it was clear that his acts fell within the activity assigned to him by Barclays and the alleged sexual abuse was “inextricably interwoven with the carrying out by the doctor of his duties pursuant to his engagement by the Bank”.
The final issue the court considered was whether finding Barclays vicariously liable was “fair, just and reasonable”. The court found that if it did not do so, the claimants would have no other legal recourse and so considered this test satisfied.
With the tests being satisfied, the court found Barclays vicariously liable for the alleged assaults carried out by Dr Bates.
This case is another example of the ever widening scope of vicarious liability, highlighting that a traditional employment relationship is no longer required for liability to be imposed.
Employers that outsource tasks to external entities but maintain a degree of control over these tasks need to consider this potential liability when reviewing their insurance requirements.
Related item: Vicarious liability: is the party over for claimants