UK: Medical assessments - employers should review their arrangements to minimise risk of vicarious liability

A High Court has held in Various claimants v Barclays Bank an employer vicariously liable for the acts (in this case, alleged sexual assaults) of a doctor engaged by it as an independent contractor to carry out medical assessments on provisionally successful job applicants to ensure fitness for role. The Court ruled that the facts satisfied the test for vicarious liability, namely that the relationship with the perpetrator was one of employment or quasi-employment (involving sufficient control), and that the wrong was sufficiently closely connected with that relationship.

Here, the relationship amounted to 'quasi-employment' as the employer required the job applicants to attend this particular doctor without choice, specified the questions to be asked and the physical examinations to be carried out by the doctor, and the assessments were an intrinsic part of the employer's business activities in ensuring new recruits were physically suitable for the job.

Given the risk of vicarious liability, employers outsourcing work to contractors should assess the risk profile of the work and consider the need for clear policies and procedures to be implemented (for example, in this case, the employer could have specified that medical examinations be chaperoned and/or not carried out at the doctor's home). Indemnities from the contractor may also provide some protection.

In July 2018 the Court of Appeal dismissed an appeal from this decision, but this was overturned by the Supreme Court in April 2020 - see our blog post here.