Vicarious liability, independent contractors and the duty of a Police Commissioner towards individual officers

In the first the Court of Appeal held that a company was vicariously liable for sexual assaults committed by a doctor engaged to carry out medical examinations for prospective applicants in Various claimants v Barclays Bank plc.

The women involved in the claim had been asked to undergo pre-employment medical examinations between 1968 and 1984 with an independently contracted doctor, Dr Bates. The claimants had applied for jobs at the bank and, as a condition of their employment, had to pass a pre-employment medical examination. Dr Bates was independently contracted by Barclays to carry out these examinations at his home.

The Court looked at whether the relationship was one of employment or "akin to employment", and whether the assaults had a sufficiently close connection to the employment or quasi-employment. It found that the assaults had been committed as a result of activity being undertaken by the doctor on behalf of the bank, and the doctor was under the control of the bank as they could direct what he did, even if they didn't direct how he should do it. It also found that there was a sufficiently close connection as the assaults were inextricably interwoven with the carrying out of the doctor's duties.

The Court found that it was fair, just and reasonable to impose vicarious liability on Barclays as this was now the claimants' sole legal recourse (Dr Bates had died in 2009). Barclays had the resources to pay the claimants' claims and therefore it was just that they should be held liable.

Meanwhile, the Supreme Court has held in James-Bowen and others v Metropolitan Police Commissioner that a person in a position akin to employer does not owe a duty to individuals when responding to proceedings relating to alleged misconduct by those individuals.

In December 2003, the respondents, four police officers serving in the Metropolitan Police Service took part in the arrest of a suspected terrorist (BA). BA then subsequently alleged that the officers had seriously assaulted and injured him during the arrest. The Independent Police Complaints Commission (IPCC) investigated and the names of the police officers were released into the public domain (leading to serious threats of violence to the officers and their families on a website supporting BA). BA then issued civil proceedings against the Metropolitan Police Commissioner alleging that she was vicariously liable for the serious assaults. On the third day of the ensuing trial the Commissioner settled the claim on the basis of agreed damages of £60,000 and agreed costs of £240,000, with an admission of liability and an apology for "gratuitous violence" to which BA had been subjected by the officers. The officers argued that a press release issued by the Commissioner was tantamount to endorsing their culpability and brought proceedings against the Commissioner alleging breach of contract, negligence and misfeasance in public office.

The Supreme Court held that the Commissioner did not owe a duty to her officers, in the conduct of proceedings against her based on their alleged misconduct, to take reasonable care to protect them from economic and reputational harm. The imposition of such a duty would not be fair, just or reasonable.

Take note: Following the Barclays Bank decision it's possible in certain situations for an employer to be liable for the acts of an independent contractor. However, it's also worth noting the emphasis the Court placed on the fact that Barclays was able to pay the claimants and that it was the sole method of recourse for them.

This article is taken from HR Law - August 2018.