An employer can be vicariously liable for sexual harassment by an independent contractor

Vicarious Liability arises where one party (whether that is a company, organisation or an individual person) is responsible for the negligent actions of another.

Summary

The Court of Appeal (CA) has rejected an appeal from Barclays Bank against a decision of the High Court (HC)]  to uphold the Claimants’ complaints against Barclays, holding Barclays vicariously liable for the actions of the Doctor whom  the bank appointed to examine the Claimants as part of their application for employment at Barclays. Barclays Bank v Various Claimants [2018] EWCA Civ 1670

Facts

The Claimants were prospective employees of the Bank.  As part of the application process they were required to undergo a medical examination by a GP, who the Claimants had been referred to by the Bank.  During the examination, the Claimants were assaulted. The Bank denied liability for the actions of the GP on the basis that he was self-employed and his services were provided to the Bank as an independent contractor.

Outcome

The trial judge found the Bank to be liable. The CA agreed, referring to the principles as set out by a judge in a previous case for establishing vicariously liability where there is not a straightforward employer/employee relationship:

  1. the employer is more likely to have the means to compensate the claimant and can be expected to have insured against that liability;
  2. the wrongdoing will have been committed as a result of activity being undertaken on behalf of the employer;
  3. the activity is likely to be part of the business activity of the employer; and
  4. the employer will have created the risk of the wrongful act being done, the wrongdoer is, to a greater or lesser degree, under the control of the employer.

The CA Judge considered factors 2 – 4 specifically and concluded that the examination was being undertaken for the benefit of the Bank, it was part of the business activity of the Bank and it was the requirement of the Bank to have its prospective employees examined by the GP chosen by the Bank, which “put the Claimants in a position of risk” and as such the CA agreed with the finding of the High Court holding the Bank vicariously liable for the actions of the Dr against the prospective employees of the bank.

Implications for Employers

This case makes it clear there is no need to prove negligence against a Respondent in proceedings in respect of how that Respondent (in this case, the Bank) engaged an independent contractor.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

The Legal 500 - The Clients Guide to Law Firms

UK Chambers logo

Best Companies - One to watch logo

Cyber Essentials Certification Logo