Numerous v Barclays Bank Plc

Good morning and welcome back to your weekly case law update. Last week’s case was about holiday pay and provided a long overdue binding decision on the issue of voluntary overtime and normal pay.

This week, partly due to a dearth of cases, we are taking a detour from the Employment Tribunal to the High Court. Today’s case is about employer vicarious liability for the actions of third parties. The question in this week’s case is:

Can an employer be liable for abuse committed by an external Doctor during applicant medical examinations?

In this case, there were 126 Claimants who were each an applicant for Barclays Bank Plc, the Respondent. Prior to their employment each Claimant had to undergo a medical examination, this was carried out by an external medical examiner. The Doctor conducting the examination abused each of the Claimants but died in 2009 before any action could be bought against him.

Therefore, the Claimants brought a claim against the Respondent who they felt was vicariously liable for the Doctor’s actions. The Court laid down a two-tier test to establish liability:

  1. Is the relevant relationship one of employment or “akin to employment”?
  2. If so, was the tort sufficiently closely connected with that employment or quasi employment?

To establish a relationship of employment/akin to employment, five criteria must be satisfied:

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

The Court was happy that the Doctor satisfied this test for the Respondent and held that as the abuse was carried out during medical examinations for the Respondent it was sufficiently connected to the Doctor’s work with the Respondent. The Respondent was held to be liable.

The takeaway point:

Yes. If the relationship between the employee and offender is, or is akin to, employment and the offence was carried out in connection with said employment then the employer can be liable.

Now, many employers do not conduct applicant medicals so may feel this is not totally relevant to them. However, similar relationships – and therefore possible liability risks – arise from external training providers, agency staff, seconded staff and self-employed contractors etc. meaning that this case is very applicable across a wide range of situations. In fact, a few years ago, we covered a sexual harassment case where an employer was liable for the actions of an employee who had recently TUPEd to another company but was still working in close proximity with the employee harassing her.