A recent Supreme Court decision in the case of Barclays Bank plc v Various Claimants held that the bank was not vicariously liable for the acts of an independent, self-employed doctor that was contracted to undertake the medical assessments and examinations of the bank's prospective employees. The decision overturned the previous decision made in favour of the claimants - i.e. that the bank was vicariously liable.
This arises after a long legal battle which commenced in 2015 when a group of 126 claimants brought a group action against the bank alleging that the doctor (who actually passed away in 2009) had sexually assaulted them and acted inappropriately during their medical examinations (which were a pre-employment requirement during the bank's requirement process) on the basis that the appointments were made by the bank.
The Supreme Court considered the question of whether the relationship between the bank and the doctor was more akin to that of an employer and employee or more of a relationship with an independent contractor. Due to recent case law, the lines have become more blurred but the Supreme Court essentially questioned whether the person who committed the assaults (here, the doctor) was carrying out the business on his own account or as part of an employment relationship with the bank.
The Court found that it was likely to be that the relationship was not even remotely close to an employment relationship. It considered the liability that would arise from a relationship with a sub-contractor in the same vein but found that there was no retainer in place between the bank and the doctor and therefore the obligations were merely that the doctor undertake appointments booked with him and would then receive remuneration for each report made. It was concluded that the doctor was in business on his own account and the bank was just one of the doctor's customers and, so, there was no vicarious liability on the part of the bank meaning that the Claimants could not hold the bank liable for the inappropriate torts committed by the doctor.
Vicarious liability can be a tricky issue, we often recommend that it be considered before entering into any contractual relationship and sew would be happy to assist you in considering appropriate clauses in the contract.
However, we can also help with any questions or issues after the contractual relationship has already commenced so please do not hesitate to contact our expert team on 01245 658360.