Supreme Court Judgment Clarifies Scope of Vicarious Liability in Relationships Akin to Employment
The Supreme Court has found that a religious organisation was not vicariously liable for a sexual attack committed by one of its elders on a member of the congregation.
Background of the Case
In the case of Trustees of the Barry Congregation of Jehovah's Witnesses v BXB, Mr and Mrs B were Jehovah's Witnesses. They became close friends with an elder of the congregation (Mr S) and his wife. As an elder, Mr S was not employed by the Jehovah's Witnesses Organisation (JWO) but was a senior member of the congregation with special responsibilities. Over time, Mr S's behaviour changed and Mrs B became concerned about him. One evening the two couples had been out evangelising and had returned to Mr S's home. Mrs B followed him into a room in order to speak to him about his behaviour, and he attacked her.
Mr S was convicted of rape and Mrs B brought a claim for damages for personal injury against the JWO. She argued that the JWO was vicariously responsible for the rape committed by Mr S. The High Court and the Court of Appeal upheld the claim, finding the JWO to be vicariously liable for Mr S's actions. The JWO appealed to the Supreme Court.
Relationship Akin to Employment
The Supreme Court allowed the appeal, finding that the JWO was not vicariously liable for Mr S's actions.
There is a two stage test to establish vicarious liability. Stage one of the test is whether there is an employment relationship, or a relationship 'akin to employment' between the wrongdoer and the person alleged to be liable. Where there is a true independent contractor, there will not be a relationship akin to employment. Otherwise, in order to determine whether a relationship is akin to employment, the court needs to consider the features of the relationship that are similar to or different from a contract of employment. Relevant factors might include whether the work is paid, how integral to the organisation the wrongdoer was, the extent of the organisation's control over the wrongdoer, and whether there is a hierarchy of seniority into which the wrongdoer's role fits.
In this case, Mr S was not employed by the JWO and was not paid for his work as an elder. The Supreme Court nevertheless found that the relationship was akin to employment, taking into account the other factors above.
Close Connection Test
However, the claim fell down on the second stage of the test. In order for the JWO to be vicariously liable for Mr S's actions, the wrongful conduct needed to be so closely connected with acts Mr S was authorised to do in his work for the JWO, that the act could be said to have been committed in the course of Mr S's quasi-employment.
The Supreme Court found that the case failed on this 'close connection' test. There was no direct connection between the attack and Mr S's role as an elder. The attack was carried out at Mr S's home when he was not performing work connected to his role. The Supreme Court was also not exerting control over Mrs S because of his role at the time of the attack. There was no underlying policy reason why the JWO should bear the legal responsibility for Mr S's act.
What Can Employers Learn From This Decision?
This decision is a useful reminder of the two stage test for vicarious liability. It acts as a particularly helpful demonstration of the factors that will be taken into account in order to determine whether a relationship is 'akin to employment' for these purposes.
