Facts of the case
This case dealt with the question of whether Barclays Bank could be vicariously liable for alleged sexual assaults committed against 126 claimants by the late Dr Gordon Bates. Dr Bates had conducted medical examinations on a number of individuals who had been offered a job by Barclays, in order to prepare medical reports which were submitted to Barclays before the individuals started work at the bank. Dr Bates was not employed by Barclays, nor was he on a retainer; he was paid an individual sum for each medical report produced. However, Barclays arranged the appointments with Dr Bates, and told the applicants where and when to attend the medical examinations.
The Supreme Court's decision
The question before the Supreme Court was whether Barclays could be found to be vicariously liable for the conduct of Mr Bates, notwithstanding that Mr Bates was not employed by Barclays. Barclays argued that the legal principle was, and had been since the 1840 decision in Quarman v Burnett, that a business was not liable for the actions of an independent contractor. However, the Claimants argued that recent Supreme Court decisions in Christian Brothers3, Cox v Ministry of Justice4 and Armes v Nottinghamshire County Council5 had changed the legal position, and that a range of incidents should now be considered when assessing whether an organisation would be liable for the behaviour of someone who is not an employee.
The Supreme Court found that the traditional legal position had not changed as a result of this trilogy of cases. The law remains that organisations can only be liable for the actions of employees, or individuals with a relationship akin to an employee relationship. The Court did acknowledge that in cases where the position is not clear, then the range of "incidents", which had first been identified by Lord Phillips in Christian Brothers, can be considered to assist in assessing whether a relationship is sufficiently analogous to employment for liability to be imposed. When assessing whether a relationship is akin to that of an employer-employee relationship, the key issue is to understand the details of that particular relationship. In the Barclays case, the Court found that Mr Bates' relationship with Barclays could not be viewed as analogous to an employment relationship, and therefore that Barclays could not be found to be vicariously liable for his actions.
In an interesting postscript, Lady Hale noted that recent developments meant that it was no longer always the case that an individual would be classified as an "employee" for all purposes: employment law, tax, social security and liability. Developments such as the "gig" economy have broken that link. However, the Court found that "it would be going too far down the road of tidiness" for the Court to align the statutory definition of "worker" with the concept of an employee, or employee relationship, for the purposes of vicarious liability.