Zenith Personal Injury Current Awareness

“Independent Contractor” is no longer a nailed-on defence for those outside of a traditional contract of employment - Barclays Bank Plc v Various Claimants [2018] EWCA Civ 1670

16 August 2018

Kelly Cronin

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Last month the judgment in Barclays Bank v Various Claimants was handed down and, despite not being a direct employee of Barclays, the bank was found to be vicariously liable for the sexual assaults a doctor committed on young women whilst examining them on its behalf.  The bank required applicants for employment to undergo a medical examination prior to being offered a role within the company, using the reports produced to determine the risks of employees becoming ill during employment and also to determine whether they could be provided with life insurance on standard terms. 

Between 1966 and 1984, Dr Bates, who was described as “the bank’s doctor” carried out the majority of these examinations.  During his examinations he sexually assaulted many young women.  Dr Bates died in 2009, after which time claimants brought an action against the bank.  The police had established that had allegations been made during Dr Bates’s life time, there was likely to have been sufficient evidence to charge him.

During proceedings, the bank argued that Dr Bates had been an independent contractor and that therefore the bank could not be vicariously liable for his actions.  However, the Court Of Appeal found that his role as medical examiner had been akin to employment with the bank, that the examinations were performed for the bank’s benefit and formed part of it’s business activities and that the bank exercised a high level of control over Dr Bates who had committed these assaults when carrying out his duties as required by the bank.  Crucial to the decision were the following facts:

Firstly, applicants to the bank had no choice in whether they had a medical examination as to refuse it would have meant that they would not have been offered a job.

Secondly, applicants were given no choice as to the doctor who examined them.

Thirdly, the bank provided Dr Bates with pro forma reports which were headed with their logo. 

Finally, the reports specified the type of medical examination to be carried out.  For example, the report required chest measurements to be obtained.  They also required examination and information regarding the genital areas of female applicants in order to determine whether they had a likelihood or history of menstrual, urinary or pregnancy-related complications.

All of these factors satisfied the court that the bank were vicariously liable for Dr Bates’s actions.  However, the judgment emphasised that each case would turn on its individual facts.

When reaching its conclusions, the following paragraphs of the judgment are significant:

45.   Moreover, it seems clear to me that, adopting the approach of the Supreme Court, there will indeed be cases of independent contractors where vicarious liability will be established. Changes in the structures of employment, and of contracts for the provisions of services, are widespread. Operations intrinsic to a business enterprise are routinely performed by independent contractors, over long periods, accompanied by precise obligations and high levels of control. Such patterns are evident in widely different fields of enterprise, from construction, to manufacture, to the services sector. It is clear that Lord Reed had such changes in mind, see Cox, paragraphs 16 and 31.”

61.   I conclude with the following remarks. It is clearly understandable that a "bright line" test, such as is said to be the status of independent contractor, would make easier the conduct of business for parties and their insurers. However, ease of business cannot displace or circumvent the principles now established by the Supreme Court. Lord Faulks advanced the status of self-employed independent contractor as representing a "coherent principle of law", thereby seeking to justify the maintenance of such a principle. The submission may be attractive at first blush. However, as has now become tolerably clear from the fields of employment and taxation law, establishing whether an individual is an employee or a self-employed independent contractor can be full of complexity and of evidential pitfalls. In my view, the Cox/Mohamud questions will often represent no more challenging a basis for analysing the facts in a given case.

The full judgment for this case can be found at the following link:

http://www.bailii.org/ew/cases/EWCA/Civ/2018/1670.html

Current Awareness

By the Personal Injury team