Employer not vicariously liable for actions of self-employed contractor

16th April, 2020 by Hannah Pryce

In Barclays Bank plc v Various Claimants the Supreme Court has confirmed that an employer will not be vicariously liable for the actions of genuinely self-employed contractors it has engaged.

Vicarious liability – where one party is held liable for the actions of another – will arise in an employment context where there is: 1) an appropriately close relationship between the person committing the wrongdoing and the employer; and 2) the “employment relationship” is closely connected with the specific act of wrongdoing.

Given the above, vicarious liability has traditionally been limited to where there is an employee/employer relationship, however in recent years there had appeared to have been a widening of that principle.

Facts

Barclays Bank Plc (Barclays) had engaged a doctor to undertake medical examinations of prospective employees. The doctor was a self-employed medical practitioner in business on their own account and did not work exclusively for Barclays.

In 2015, proceedings were issued by a group of 126 claimants who alleged that the doctor had sexually assaulted them during medical examinations commissioned by Barclays. The doctor in question had died in 2009 and as a consequence, the claimants sort to argue Barclays were vicariously liable for the doctor’s actions.

As a preliminary issue both the High Court and Court of Appeal found Barclays to be vicariously liable for the Doctor’s actions. Barclays appealed to the Supreme Court.

The Supreme Court overturned the Court of Appeal’s decision. It clarified that an employer can be vicariously liable for the actions of someone who is not their employee, although their relationship with that other person must be sufficiently close and comparable to that of an employee. In the present case, the doctor in question did not have a relationship with Barclays that was comparable to that of an employee – the doctor was clearly in business on their own account. As such, Barclays could not be vicariously liable for the doctor’s conduct.

Employment law expert, Hannah Pryce comments:

"The above case is welcome news for employers as it helpfully clarifies and limits the extent to which they are liable for the actions of independent contractors. Employers still need to carefully consider any arrangement they have with independent contractors, including reviewing any written agreements in place. If the relationship is more akin to an employment one (a common risk) then they could ultimately be vicariously liable, as well as also creating risks associated with IR35 and employment status liability. Speak with a member of the team should you wish to discuss this further."

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