Barclays Bank plc v Various Claimants

Vicarious liability may arise where the tortfeasor is an employee or stands in a relationship sufficiently analogous to employment. It does not extend to a person carrying on a genuinely independent business.

The central inquiry is whether the tortfeasor was working as part of the defendant’s enterprise or on their own account. In doubtful cases, five policy incidents may assist, including business integration, risk creation and control. They are neither exclusive criteria nor a substitute for examining the relationship in detail. Where the tortfeasor plainly conducts an independent business, there is no need to apply those incidents.

Some 126 claimants alleged that Dr Gordon Bates had sexually assaulted them during medical examinations conducted between 1968 and about 1984. The Bank arranged the examinations as part of its recruitment process and paid Dr Bates a fee for each report. He also worked for hospitals and numerous other clients.

On a preliminary issue, the High Court held that the Bank would be vicariously liable for any assaults proved: [2017] EWHC 1929 (QB); [2017] IRLR 1103. The Court of Appeal dismissed the Bank’s appeal: [2018] EWCA Civ 1670; [2018] IRLR 947.

The issue before the Supreme Court was whether Dr Bates’ relationship with the Bank was sufficiently analogous to employment to make the Bank vicariously liable for his alleged wrongdoing.

1. Appeal allowed unanimously. Lady Hale, with whom Lord Reed, Lord Kerr, Lord Hodge and Lord Lloyd-Jones agreed, held that the Bank was not vicariously liable for any wrongdoing committed by Dr Bates during the examinations.

2. The first stage of the vicarious-liability inquiry concerns the relationship between the defendant and the tortfeasor. The doctrine extends beyond contracts of employment to relationships sufficiently akin or analogous to employment. It does not extend to a tortfeasor carrying on a genuinely independent business. The conventional distinction between employees and independent contractors therefore remains part of the law.

3. The decisions in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56, Cox v Ministry of Justice [2016] UKSC 10 and Armes v Nottinghamshire County Council [2017] UKSC 60 had not replaced that distinction with an unrestricted inquiry into whether liability appeared fair, just and reasonable. The five incidents identified in the first of those cases are policy considerations which may assist in doubtful cases. They are not exhaustive criteria. The usual key is a detailed examination of whether the tortfeasor formed part of the defendant’s enterprise or was conducting an independent enterprise.

4. Viewed objectively, Dr Bates was not close to being an employee of the Bank. The Bank arranged appointments and prescribed the information required, but those features were also compatible with an independent contractor. He received a fee for each report, had no retainer, could refuse work, probably maintained his own professional insurance and served a portfolio of clients. The Bank was merely one client of his independent medical practice. It was therefore unnecessary to work through the five policy incidents.

5. The statutory distinction between employees and other workers in section 230(3) of the Employment Rights Act 1996 may sometimes help identify a true independent contractor. The common law of vicarious liability should not, however, be aligned with that statutory concept because the two regimes developed for different purposes. The Court accordingly reversed the decisions below and held that the Bank bore no vicarious liability.

1. United Kingdom Supreme Court: In Barclays Bank plc v Various Claimants [2020] UKSC 13, the court unanimously allowed the Bank’s appeal and held that it was not vicariously liable for Dr Bates’ alleged wrongdoing.

2. Court of Appeal: The court dismissed the Bank’s appeal and affirmed the preliminary ruling: [2018] EWCA Civ 1670; [2018] IRLR 947.

3. High Court: Nicola Davies J determined the preliminary issue by holding that the Bank would be vicariously liable for any assaults proved: [2017] EWHC 1929 (QB); [2017] IRLR 1103.