Vicious Vicarious Liability

Posted on Sep 25, 2018

Vicarious liability, an area of the law which all employers dread, has just become more complicated. The recent case of Barclays Bank plc v Various Claimants has confirmed that the exclusion of vicarious liability for independent contractors, is no longer a defence for employers.

The main issue in this case was whether an employer could be liable for the deliberate criminal assaults on its employees by an independent contractor. Barclays Bank was the employer and the independent contractor was a doctor who carried out numerous sexual assaults on the bank’s employees. The doctor was hired by the bank to carry out medical examinations on employees and applicants for employment to ensure they were healthy enough to work.

The High Court ruled the bank were vicariously liable for the doctor’s misconduct. They found this liability to be fair, just and reasonable as they held the relationship between the bank and doctor, and connection between assaults and quasi-employment of the doctor to sufficiently amount to vicarious liability.

The bank went on to appeal the decision resulting in the case going to the Court of Appeal where the decision at first instance was upheld. To help reach a decision the court looked at the test established and used in several cases: E v English Province of our Lady Charity, Various Claimants v Institute of Brothers of Christian Schools, Cox v Ministry of Justice. The test consists of two questions: is the relevant relationship one of employment or akin to employment? Was the tort sufficiently connected with that employment or quasi-employment?

Regarding the first question, the most crucial factor was that the bank had hired the doctor to carry out a specific medical examination. This also meant the second criteria was fulfilled as the assaults wouldn’t have happened if the medical examination had not been required. Therefore, the High Court’s ruling was upheld.

What has changed?

In light of this case, two major things have become clear.

Firstly, the two-stage test to determine whether an employer is vicariously liable for conduct of a third party including an independent contractor is still very much relevant. As well as this, the case shows the test is flexible and allows decisions to be reached on a case by case basis rather than creating a blanket rule.

Secondly, what was once a defence, that there is no vicarious liability for independent contractors, has been completely overruled therefore expanding its definition.

A word of warning to employers; vicarious liability is more far reaching than it once was. To avoid getting tangled up in its web, I would suggest having safeguards in place to ensure the people you hire are trustworthy.