In Barclays Bank v Various Claimants, the Court of Appeal has upheld a High Court’s decision that the bank was vicariously liable for the deliberate criminal assaults of a contractor on its employees.
The case concerned historical sexual assaults of a doctor (who was an independent contractor of the bank) on female bank employees when conducting medical examinations on behalf of the bank. The bank specified the nature of the examinations, as well as the time, place and examiner. The bank provided pro-forma examination forms, headed with its logo and entitled "Barclays Confidential Medical Report", and paid a set fee for each examination.
The doctor was found to have carried out a number of deliberate sexual assaults and a 2013 police investigation found sufficient evidence to criminally prosecute the doctor had he been alive today.
At first instance, the High Court considered the test for vicarious liability, namely whether the relevant relationship was one of employment or akin to employment; and if so, whether the tort was sufficiently closely connected with that employment or quasi-employment. The Court used a number of factors for the second limb of the test in deeming the bank to be vicariously liable. Under the unusual facts of the case, the bank was the only potential compensator given that the doctor’s estate had already been distributed following his passing.
The Court of Appeal has upheld the decision and that the key issue is whether the relevant relationship was one of employment/akin to employment and the torts were sufficiently closely connected with the employment. Importantly, the Court of Appeal refused to draw a “bright line” based on the status of independent contractors to determine vicarious liability.
As we blogged on following cases concerning data breaches by rogue employees and the Supreme Court’s previous rulings on vicarious liability, employers should ensure they communicate and enforce standards expected for those working for them, even those who are not direct employees.