17 October, 2017
Various Claimants v Barclays Bank PLC (2017) EWHC 1929 (QB)
In Various Claimants v Barclays Bank plc  EWHC 1929 (QB), 126 claimants brought a group claim against Barclays Bank for sexual abuse perpetrated during the course of mandatory pre-employment medical examinations.
The claimants were job applicants and existing employees of the bank. As part of the application process they were required to attend a medical assessment with a doctor nominated by the bank. The assessments took place at a consulting room in the doctor's home between 1968 and 1984. The claimants alleged that the doctor sexually assaulted them by inappropriate breast, vagina or anal examinations.
The preliminary question before the Court was whether the bank was vicariously liable for assaults committed by the doctor? The bank maintained that the doctor was not an employee but an independent contractor, and it was therefore not vicariously liable.
The High Court held that the relationship between the bank and the doctor was sufficiently similar to employment. The examinations had been performed on behalf of the bank and for its benefit, at all times Dr Bates was described to the claimants as the 'bank's doctor'. The bank had created the risk of the tort being committed. It had chosen the doctor, made and paid for the appointment and allowed him to perform the examinations in his own home on women as young as 16. The applicants had no choice but to agree to the examination if they wanted to secure a job with the bank. It was found that the bank had the necessary degree of control over the process to the extent that it had even chosen the questions to be asked and the physical examinations to be performed.
The law relating to vicarious liability has developed significantly since the time when it was necessary to show a conventional employer/employee relationship. The bank sought to argue that the doctor was a self-employed independent contractor and as a result liability should not attach. However, recent case law has demonstrated an increasing willingness by the Courts to find vicarious liability outside of the traditional employment relationship and this case was no exception. Even though the doctor was described at all times as an independent contractor by the bank, it is clear from the Judgment that the degree of influence and control exercised by the bank over the arrangements was crucial and ultimately led to the finding.
We suspect that public policy considerations may have also influenced the outcome of the case, Dr Bates had died some years ago and his estate had been distributed.
This decision has significant ramifications for employers who now potentially run the risk of being held responsible for tortious acts committed by people not formally employed by their organisation. This area of law is by no means clear cut, and each case will need to be considered on its facts.