Supreme Court holds that Barclays were not vicariously liable for acts of an independent contractor doctor
The same justices who heard the appeal in the Morrisons data protection case also gave judgment on the same day in a case which looked at whether Barclays Bank was liable for alleged sexual assaults of its staff by a doctor who was engaged to carry out pre-employment medical examinations of its staff. The case involved 126 claimants who alleged they had been assaulted.
The main issue in dispute was whether, as a matter of principle, Barclays could be vicariously liable for the acts of a self-employed contractor. The Court of Appeal had ruled that it could, and that Barclays was therefore liable for his actions in this case.
Historically, employers have only been vicariously liable for acts or omissions by their employees (i.e. those working under a contract of employment). However, in more recent years, vicarious liability has been found by the courts to exist in respect of relationships which are not governed by a contract of employment but are ‘akin to’ or ‘analogous to’ employment.
In this case, the claimants argued that vicarious liability should therefore apply in respect of the wider statutory category of ‘workers’, who are not engaged under a contract of employment. The Supreme Court declined to rule that ‘workers’ were necessarily within the scope of vicarious liability as a matter of principle. It was not necessary to do so in this case anyway, because it found that, not only was Dr Bates not an employee of Barclays, he was not “anything close to an employee”: on the facts he was clearly an independent contractor.
Barclays were therefore not vicariously liable for his actions.
What does this mean for employers?
This case has not fundamentally changed the law. It remains the case that employers can be vicariously liable for the acts or omissions of contractors who are not employees, but only if the relationship is ‘akin to’ or ‘analogous to’ employment. It is therefore sensible for employers to review the contractual arrangements they may have with contractors who might be in that category and review the risk of vicarious liability claims, and whether appropriate insurance arrangements are in place.
