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Vicarious Liability and the Self-Employed

BY Kirstie Beattie
Employment Law & HR

Employment status has been a key topic over the past few years and has been at the centre of many high-profile cases, none more so than that of Barclays Bank PLC v Various Claimants. This case, the judgment of which is expected imminently, could have a significant impact on and further develop the principle of vicarious liability and the ‘Independent Contractor Defence’.

The Court is asked to determine whether the Defendant Bank is liable for sexual assaults committed by a self-employed GP, Dr Bates, during pre-employment medical examinations. The examinations were carried out by Dr Bates at the Bank’s request in his own home. Over 100 women have claimed that they were sexually assaulted during the medical examinations between 1968 and 1984. In 2017, the Claimants in this case decided to pursue a claim of vicarious liability against Barclays Bank to hold the company accountable for the actions of Dr Bates. This was the only legal remedy available to the Claimants at this time as Dr Bates passed away years before.

The principle of vicarious liability is the means by which courts hold companies and organisations responsible for the actions (and omissions) of their employees. In order to establish vicarious liability the individual must be either an employee or be in a relationship akin to employment with the employer. Therefore, in the present case, the latter applies as there is no formal or conventional employment relationship between Barclays Bank and Dr Bates. However, a relationship exists between the parties which was decided by the High Court and upheld in the Court of Appeal, to be akin to employment.

The decision in the Court of Appeal was justified on the basis that the medical examinations were being carried out on the Bank’s behalf. The Court recognised that although there was an evident benefit to the Claimants, it is clear that the principal benefit was to the prospective employers. Another factor which was of significant importance to the Court was that the Bank provided a medical checklist for Dr Bates to complete, which arguably gave rise to unnecessary, intimate examinations. In the Court's view, this constituted a degree of control that translated into a relationship akin to employment.

The final judgment in this case is expected to be given by the Supreme Court on 12th February 2020. The implications of this judgement are likely to be far reaching, leading to development of the principle of vicarious liability and further commentary about the relationship between companies and those engaged as self-employed contractors.

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