The claimants were 126 victims of Dr Bates’ alleged sexual assaults who were precluded from bringing civil claims against the doctor due to his death and the distribution of his estate. Their only course of redress was to claim against Barclays under the concept of vicarious liability. The question for the High Court to decide was whether Barclays, as the hirer of Dr Bates, should be vicariously liable for his alleged sexual assaults.

The general rule is that the hirer of an independent contractor cannot be vicariously liable for their actions. However, there is an exception to this rule if there is sufficient connection between the relationship of the hirer and contractor and the actions committed by the contractor. The High Court decided that the question of whether Barclays was vicariously liable for the doctor’s actions should be considered as a preliminary issue before proceeding to consider the merits of the claims.

The first question for the High Court to consider was whether the relationship between Barclays and Dr Bates was one of employment or “akin to employment”. This required analysis of five factors, the most important of which were (1) whether the doctor’s actions were the result of activity he had taken on behalf of Barclays, (2) whether that activity related to the business activity of Barclays, and (3) whether Barclays created the risk of the assaults perpetrated by Dr Bates by employing him.

In scrutinising the relationship between Barclays and Dr Bates, the High Court noted that the applicants had not had any choice as to which doctor carried out the medical examination which had been at the bank’s sole discretion. Barclays had also instructed the doctor as to what type of medical examination it required, including the need for a chest examination. The High Court decided that by providing a pre-employment health check Dr Bates had acted for the benefit of Barclays and by doing so his activities had been an integral part of the business activity of the bank. The High Court concluded that the requirements for the first stage of the vicarious liability test were met.

The second issue to be decided was whether there had been a sufficiently close connection between Dr Bates’ actions and the work he had been hired to do. The High Court decided that the alleged sexual abuse had been inextricably woven with the tasks the bank had hired the doctor to carry out.

“The task assigned to Dr Bates placed him in a position to deal with the claimants. On the alleged facts he abused that position. It is difficult to see how it can sensibly be argued that [...]]]> http://lawandlabour.com/barclays-bank-liable-for-sexual-assaults-by-company-doctor/feed/ 0 http://lawandlabour.com/pimlico-plumbers/ http://lawandlabour.com/pimlico-plumbers/#comments Sun, 12 Feb 2017 11:30:13 +0000 http://lawandlabour.com/?p=2425 Gary Smith carried out plumbing work for Pimlico Plumbers (PP) between 2005 and 2011. He had entered into agreements with PP which stated that he was a “sub contracted employee” and later a “self-employed operative” of the business. He was required to comply with the rules in a company manual, including a requirement to work a minimum of 40 hours a week, and he paid rental charges to PP for the use of their work van and mobile phone.

The Court of Appeal looked at characteristics of the relationship between PP and Mr Smith to determine whether he had worked as an independent contractor. The issue of personal service – whether a person is required to carry out work personally or whether they can delegate tasks to another person – was a key issue at the appeal as a requirement for personal service tends to indicate an employment relationship. The Court of Appeal found that Mr Smith was personally required to carry out the plumbing work himself and neither his agreement with PP nor their manual permitted him to get a substitute to perform tasks on his behalf. The Court of Appeal also found that PP exercised a degree of control over Mr Smith that was inconsistent with them being a customer or client of a business run by him.

“The essential point was…that the evidence showed that Mr Smith was obliged to work (or be available for work), subject to the various elements of flexibility that [the Employment Tribunal judge] identified, essentially on a full-time basis and that he could not be properly said to be working on a casual basis.” The Court of Appeal

The Court of Appeal considered Mr Smith’s hours of work and found that he was obliged to work 40 hours a week, even if PP did not enforce that rule. In practice, the rental charges incurred by Mr Smith in using PP’s van and mobile phone meant that he had to work for at least 40 hours a week in order to earn sufficient money to provide him with a decent income.

The appeal was therefore dismissed.

The case is another in the chain of decisions regarding the employment status of those working in the “gig economy”, such as the recent Uber case. It shows that the courts remain keen to look beyond the smokescreen of the contractual arrangement between businesses and those who work for them in order to determine the true nature of the working relationship in practice.

CASE Pimlico Plumbers Ltd and ors v Gary Smith, Court of Appeal, 10 February 2017

On 13 June 2018, the Supreme Court upheld the finding that plumbers working for Pimlico Plumbers are workers rather than independent contractors. For details of the judgment, read our report here.

Photograph: “Infrastructural (18/365)” by Flikr user Rex Babiera used under Creative Commons Attribution 2.0 license