Vicarious Liability for Sexual Assaults – Extending the Scope?

In Various Claimants v Barclays Bank PLC, the High Court has ruled that a bank was vicariously liable for sexual assaults committed by a doctor during medical examinations it required as part of a job application process between 1967 and 1984.

This case involved 126 claims by former job applicants and existing employees, and the Court applied the two-stage test: (i) Whether the relationship was one of employment or “akin to employment”, and (ii) whether the assaults had a sufficiently close connection to the employment or quasi-employment.

This case appears to extend the scope of vicarious liability further than ever before – any employer hiring someone to carry out medical examinations may, on the basis of this decision, risk being held vicariously liable for any wrongdoing. This continues along the path of treating some of those who appear to be independent contractors as quasi-employees and applies a ‘control’ test that may seem alien to many employment practitioners, with a focus on accountability.

Furthermore, the imposition of liability, at least partly, on the basis that the Claimants’ sole recourse was the bank, which was the consequence of their delay in bringing the claims, may seem like it is penalising the bank. However, the negative impact of this for bank may well be mitigated by the subsequent decision to be made on limitation, at which point the Court will have to consider the prejudice to the bank of the claims being made decades after the assaults took place.

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Paul Livingston is part of the Child and Adult abuse group at Outer Temple Chambers, and also specialises in employment law.

News 2 Aug, 2017