There appears to be a suggestion doing the rounds that the BBC, together with Stoke Mandeville and the Leeds General Hospitals, could find themselves on the wrong end of compensation claims from women who have come forward over the last couple of weeks with allegations that they were sexually abused by Jimmy Savile on the basis that these organisations could be held to have been vicariously liable for Savile’s actions as an employee/volunteer under some sort of notional ‘duty of care’.
Based on what has come to light, thus far, it seems unlikely that such claims would have a realistic prospect of success.
To be clear, vicarious liability applies to negligent acts or omissions by employees undertaken in the course of their employment provided that those acts or omission fall with the scope of the employee’s job, i.e. the employee has to be carrying out an authorised activity or doing something connected to an authorised activity for the employer to be held liable for their negligent conduct.
Clearly, therefore, Savile’s own personal conduct falls outside the scope of authorised role as an employee/volunteer and so the focus of any litigation claims of vicarious liability rests solely on the actions of employees and volunteers working with, or in close proximity to Savile, who may have been aware of, but failed to report, his conduct – and thereby hangs the problem for would-be litigants.
To date, all we appear to have are a series of allegations that were made only after Savile’s death and a general impression, given by some of his contemporaries at the BBC, that his personal predilections were subject of a fair amount of rumour and office gossip which, to be honest, is no more than one would expect to find when dealing with a man whose carefully cultivated public image was one of larger-than-life eccentricity. What’s missing from the overall picture, so far, is any indication that the BBC or either of the two hospitals at which Savile acted as a volunteer had any kind of awareness of Savile’s conduct beyond the kind of rumours that could easily have been nothing more than product of a vague impression that he was not just eccentric but a bit creepy as well.
With – seemingly – nothing concrete to go on, it has be understood that the BBC, as a news broadcaster, would have had far more latitude to pursue such rumours as a journalistic venture than it would have had as an employer. In journalistic terms, the BBC would have had to take into consider only the legality of investigative methods and the public interest should it have chosen pursue an investigation into rumours of Savile’s ‘extra-curricular’ activities. As an employer it had a contractual duty to treat Savile with the same trust and respect it would afford to any other employee and would, as a consequence, have needed something more to go on than vague rumours and watercooler scuttlebutt before it could consider mounting an investigation into Savile’s conduct without running the risk of being sued for breach of contract. A complaint would, of course, have been sufficient to warrant and investigation as would a second hand report or account of a specific incident but otherwise, in its capacity as an employer, the BBC could not have reasonably have mounted a fishing expedition into deepest recesses of Savile’s personal life on the back of a few vague rumours without running the risk, if the rumours proved to be unfounded, of finding itself on the wrong end of potentially damaging law suit brought by what was, at the time, not only one of its star performers but a man whom the public regarded as something akin to a saint due to his charity work.
Clearly, if evidence emerges to the effect that any of these organisations had been in receipt of a complaint about Savile or had been notified of a specific incident that should reasonably have set the alarm bells ringing, only for them to fail to investigate the matter and sweep it under the carpet, then all bets are off, at so far as that any later incidents/allegations are concerned. But. if no such evidence emerges, then any would-be litigant is likely to find themselves in the position of having to argue that employees have a positive duty in law to report vague rumours and office gossip to management who, in turn, have a duty to investigate those rumours as if they were concrete allegations of misconduct – creating the scope for Savile’s contemporaries to have been negligent in the course of their employment – and I cannot, for the life of me, see a court buying into such an argument given the effect that this would have on the foundations, in law, of employment contracts generally.
The only other possibility here, for any would-be litigants, would be to show that one or more of these organisations operated what could, perhaps, be reasonably called a ‘Don’t Ask, Don’t Tell’ culture, at the time these incident took place – and there is some suggestion that this might well have been the case in the 1960s – but this would, I suspect, give rise to a very different kind of liability in law than vicarious liability…
…unless any blogging lawyers know otherwise.