By Joseph Oates, Partner
An employer can, in some circumstances, be liable for the conduct of its employees, carried out in the course of employment. This is known as vicarious liability, which is governed by Section 109 of the Equality Act 2010.
Historically, vicarious liability did not apply to a party engaging an independent contractor, who would remain liable for their own actions. Despite this, in the recent Court of Appeal decision of Barclays Bank PLC v Various Claimants [2018] EWCA Civ 1670 Lord Justice Irwin asserted that the law of vicarious liability is ‘on the move’ and has altered to include independent contractors.
In the aforementioned case, 126 Claimants brought a group claim against Barclays who had engaged a GP to conduct medical examinations for employees and prospective employees. The Claimants alleged that they had been sexually assaulted by the GP during these examinations. In 2009 the GP died, which meant the Claimants’ only recourse was to seek damages against Barclays itself.
The Claimants argued that the GP was in a relationship ‘akin to employment’ with Barclays; who should therefore be liable for his action. In the first instance, the High Court held that Barclays was vicariously liable. Barclays appealed this decision and argued that the GP was an independent contractor and Barclays could not be vicariously liable for his actions.
Upon appeal, the court confirmed the fact that Barclays was more likely than the deceased GP’s Estate to have sufficient means to compensate the Claimants was a relevant factor at the time of litigation. The Court recognised that the assaults were committed as a result of the GP’s activities on behalf of Barclays. The medical examination process was a part of Barclay’s business activities, and the nature of the examinations, time, place and examiner performing them was specified by Barclays. Barclays had created the risk of the doctor committing the assaults.
The court upheld the High Court’s decision on whether the assaults were sufficiently closely connected to the employment or quasi employment and held that the medical examinations were the purpose of the GP’s relationship with Barclays. The Court reassessed whether it was just and fair for the Bank to be required to meet the claim; it was held that it was. The Court of Appeal subsequently upheld the High Court’s decision and found Barclays to be vicariously liable for the GP’s actions.
This decision illustrates that the principle that there is no vicarious liability for independent contractors in not absolute. Although every case must be considered on its facts, organisations with some control over an independent contractor must carefully monitor their actions.
If you have any queries on this, please don’t hesitate to give Partner Joseph Oates a call on 01892 515022 or email: jmo@cooperburnett.com
