Vicarious liability and independent contractors: Barclays Bank v Various Claimants

In 2018 I happily reported a progression in vicarious liability claims with the  Court of Appeal decision  Barclays Bank -v- Various Claimants [July 2018].  My blog can be found here.  As a reminder, this case concerned  prospective employees of Barclays Bank who, as part of the application process, were required to undergo a medical examination by a GP.  During the examination, the claimants were assaulted.  The bank denied liability for the actions of the GP on the basis that he was self-employed and his services were provided to the bank as an independent contractor.  The trial judge found the bank to be vicariously liable and the Court of Appeal agreed.  The decisions were reached by paying heed to the criteria laid down in  Catholic Child Welfare [2012] which I repeat below:

1. The employer is more likely to have the means to compensate the claimant and can be expected to have insured against that liability.
2. The wrongdoing will have been committed as a result of activity being undertaken on behalf of the employer
3. The activity is likely to be part of the business activity of the employer
4. The employer will have created the risk of the wrongful act being done
5. The wrongdoer is, to a greater or lesser degree, under the control of the employer.

Looking at factors 2 to 4, the examination was being undertaken for the benefit of the bank, it was part of the business activity of the bank and it was the requirement of the bank that its prospective employees be examined by the GP which “put the claimants in a position of risk.”  Having lost at trial and in the Court of Appeal, the bank appealed to the Supreme Court.

I have previously mused on how past cases involving independent contractors may have a different outcome if run today.  Well, it turns out such cases would have exactly the same outcome.  On 1 April 2020 the Supreme Court handed down its judgment reversing the Court of Appeal’s decision. The “independent contractor” defence is once again alive and kicking.  See Barclays Bank Plc v Various Claimants [2020] UKSC 13.  To add to the blow to claimants in vicarious liability cases, the judgment was handed down on the same day as WM Morrisons Supermarket PLC v Various Claimants [2020] UKSC 12.  This decision has attracted much commentary and is not within the remit of this blog.

In the Barclays case, the Supreme Court considered the key questions to be whether the GP was an independent contractor, carrying on business off his own account or was he in a relationship with Barclays Bank akin to employment.  On the facts it was decided that the GP was a true independent contractor – he had his own clients, he was not paid a retainer by Barclays and it was an expectation that he would have his own liability insurance.  As the Supreme Court was able to satisfy themselves that the relationship was not akin to an employer/employee, it concluded that it did not need to consider the 5 factors listed above.  These factors are only relevant if the facts do not clearly answer the employer/employee relationship.

The decision is disappointing.  The ability for claimants to have an alternative defendant to go against when the independent contractor cannot be traced or does not have adequate insurance has been removed.  I cannot help but think that once again the fear of the floodgates opening has had its part to play in this unwelcome development.