Employment Law Case Update: Various Claimants v Barclays Bank plc

A mass sexual assault claim - Various Claimants v Barclays Bank plc – is disturbing enough. The ramifications for employers are also sobering.

An astonishing 126 claimants sought damages against Barclays Bank for sexual assault. The claimants were job applicants and existing employees who were required to undergo medical assessments, most of whom were young women. As part of the bank’s application process, they were required to attend a medical assessment with a doctor nominated by the bank. These assessments took place between 1967 and 1984 at a consulting room in the doctor’s home. The claimants alleged that the doctor sexually assaulted them by inappropriate breast, vagina or anal examinations. The doctor died in 2009; therefore any claim brought against him personally was too late.

A police investigation into the cases of 48 victims found sufficient evidence to prosecute, had the doctor been alive. The court was required to determine whether the bank was vicariously liable for the assaults committed by the doctor. It was argued that the doctor was not an employee but an independent contractor, and the bank therefore not vicariously liable.  The bank also argued that the doctor’s examinations were not part of the bank’s business, and the doctor was not integrated into the bank.

The court said that determination of the issue as to whether or not vicarious liability existed in a particular case involved a two stage test deciding if the relevant relationship one of employment or “akin to employment” and if so, was the tort sufficiently connected with that employment or quasi employment?

The five criteria for the first to be satisfied were:

• The defendant is more likely to have the means to compensate the victim than the tortfeasor and can be expected to have insured against that liability
• The tort will have been committed as a result of activity being taken by the employee on behalf of the employer
• The tortfeasor’s activity is likely to be a part of the business activity of the defendant
• The employer, by employing the employee to carry on the activity, will have created the risk of the tort committed by the employee
• The employee will, to a greater of lesser degree, have been under the control of the employer

The court found that each of the criteria was met. Concerning the second stage, it found that the abuse was closely connected of the doctor’s activities for the bank and satisfied stage two of the test.

The court ruled that it was fair, just and reasonable to impose vicarious liability upon the bank. It’s a decision with worrying and far reaching implications – and means that employers will now be held vicariously liable in a whole range of situations not previously considered.

This article is from our weekly Employment Law Newsletter published on 05/10/2017.  If you would like to receive this newsletter directly and be kept up to date with recent cases and Employment Law news, email events@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.