The case of Various Claimants v Barclays Bank plc recently went to the Court of Appeal. The facts are truly awful but this case should serve as a stark warning to all employers to think carefully before they make their employees carry out an activity without fully checking what risk they may be exposing them to.

So – what was the case about? Prospective employees of Barclays Bank had to agree to undertake a compulsory medical examination as a condition of their employment. These examinations were carried out by the late Dr Gordon Bates from 1968 until 1984. The Bank provided Dr Bates with a pro-forma to fill in and paid him a set fee for each examination. It transpired that Dr Bates had behaved inappropriately during these examinations, requiring employees to strip down to their underwear and examining their breasts and/or digitally penetrating them. The police confirmed that, had the doctor still been alive, he would have faced criminal prosecution for sexual assault.

Some 126 claimants claimed that the Bank was ‘vicariously liable’ for the actions of Dr Bates and, as such, they sought damages from the bank. The Judge at first instance agreed that the Bank should be responsible for the acts of the doctor and that damages were payable to Claimants who could prove that they had been a victim of the doctor.

The Bank appealed to the Court of Appeal, denying that Dr Bates was an employee or in a situation akin to employment. He was instead an independent subcontractor and, as such, liable only on his own part. Dr Bates had organised his own professional life, carried out the examinations in his own home and also worked for other organisations. They denied that he was an employee or quasi-employee.

The Court of Appeal rejected the Bank’s arguments and held that the judge had not erred in concluding that Barclays Bank was vicariously liable for any assaults that the late Dr Gordon Bates had carried out. The Bank’s relationship with the doctor was one of employment or akin to it and the negligent acts complained of were sufficiently connected with the employment.

It is wholly unimaginable that a doctor would behave in this way and some commentators feel that the decision is unfair to the Bank. What is pertinent about this case, however, is that the Claimants were all 16 years old at the time of the examinations and were never offered a chaperone or the choice of a female doctor. The Bank created a foreseeable risk of a negligent act being carried out, with scant regard for their employees. I completely agree that the Bank should be held liable: they forced teenage women into a dangerous situation as a pre-requisite to getting an offer of employment or continuing in their employment.

All employers should receive this case as a stark warning of how far their duty of care towards their employees may extend.

 

Caption: Claire Kirwan, Partner and Head of the Personal Injury Department

 

Case details

Various Claimants v Barclays Bank plc [2018] EWCA Civ 1670
Court of Appeal, Civil Division
Judges: Sir Brian Leveson P, McCombe and Irwin LJJ
Date of judgment: 17 July 2018