Where does the buck stop when you engage an independent contractor?

Businesses should be aware that they can be held legally responsible for the actions of independent contractors engaged to work on their behalf, after an important Court of Appeal decision.

The ruling in Barclays Bank PLC v Various Claimants [2018] is a significant development in the law relating to vicarious liability. The bank was found liable for sexual assaults by a doctor carrying out medical examinations of prospective and existing employees at its request.

The decision could result in a surge of historic claims against businesses. It means that employers should check their procedures when using third parties such as occupational health providers and medical experts, to ensure full and proper due diligence exercises are undertaken.

It also means employers should confirm their employment opportunity and grievance policies are up to date, as well as considering taking out public liability insurance, not currently compulsory in the UK, to protect against potential vicarious liability claims.

Background

In this case, 126 claimants, mostly women and some as young as 16 years, alleged they had been sexually assaulted by Dr Gordon Bates, who had been engaged by Barclays to carry out medical assessments as part of its recruitment process, between 1968 and 1984.

Dr Bates was not an employee of the bank but a self-employed independent contractor who was paid a fee for each examination carried out without chaperones in a consulting room at his Newcastle home.

Sufficient evidence for criminal prosecution

He died in 2009 at the age of 83 and his estate was distributed. A posthumous police investigation which began in 2012 concluded that there would have been sufficient evidence to pursue a prosecution if he was still alive.

There were 48 criminal acts reported and a further 77 inappropriate medical examinations recorded. The claimants subsequently sought damages against Barclays in a case which was first heard at the High Court.

What did Barclays say?

Lord Faulks QC, acting for Barclays, told the High Court that Dr Bates was an independent contractor. The bank did not admit or deny the allegations but Lord Faulks said Dr Bates was not employed by Barclays and would be liable for any assaults he carried out. His relationship with the company was neither one of employment nor "akin to employment" as he was self-employed with a "portfolio" of activities.

The judge, Mrs Justice Nicola Davies, said the fact that Dr Bates organised his own professional life did not counter the argument that he was under the control of the bank and the alleged abuse was "inextricably woven" with his work for it.

She concluded that Barclays was 'vicariously liable for any assaults that any claimant may prove to have been perpetuated' by Dr Bates in the course of medical examinations carried out at Barclays request.

She added it was a balancing exercise between two innocent parties but, as Dr Bates had died, the action against the bank was the only legal recourse now available to the claimants.

Court of Appeal

The Court of Appeal dismissed Barclays' appeal and upheld the High Court's decision.

It also acknowledged that the law on vicarious liability had developed over the years and was "on the move" in a world where using independent contractors was increasingly common.

Lord Justice Irwin observed: "…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…"

What next?

Traditionally businesses have been less likely to be held responsible for the acts of self-employed contractors. However, vicarious liability is a developing rule of law under which a business can be strictly liable for the wrongdoing of others, if there a sufficiently close relationship and it is fair to hold the business responsible.

Although there may be a further appeal to the Supreme Court, the Barclays case is undoubtedly significant. It confirms that the 'independent contractor' defence is no longer reliable, and businesses should be aware of their wide responsibilities.

For help and guidance about this area of the law, please contact Wards Solicitors' Employment Law Consultant Solicitor, Julia Beasley.