Vicarious liability: Important supreme court judgment confirming the boundaries of employer's vicarious liability

Published 8 June 2023

A Supreme Court judgment has confirmed the test to be used in assessing whether employers have vicarious liability for the wrongdoing of employees

Please note: this article includes content which readers may find disturbing. 

THE FACTS

Recent years have seen a number of judgments on whether an employer or organisation should be vicariously liable for the actions of its employees or quasi-employees. On 26 April 2023, the Supreme Court handed down its judgment in the Barry Congregation case, confirming the boundaries of vicarious liability following the 2020 judgment in Various Claimants v Wm Morrison Supermarkets Plc (please see our alert on the Morrison case here).

Mr S was an elder of the Barry Congregation of Jehovah's witnesses.  Mrs B was a member of the congregation. She and her husband had become very close friends of Mr S and his wife, having met through Mr S's position in their congregation. After a change in Mr S's behaviour, Mrs B contacted Mr S's father who told her that Mr S was suffering from depression and needed love and support.

After a morning of evangelising with Mr S and his wife, Mrs B and her husband went to Mr S's home. As she went into a room to provide support to him, he raped her.  Mr S was prosecuted and convicted of the rape.

The Congregation was found by the High Court to be vicariously liable for the actions of Mr S, the Court finding that the relationship between the Congregation and Mr S was capable of giving rise to vicarious liability and that the rape was sufficiently closely connected to his position in the congregation to make it just and reasonable for the Congregation to be held vicariously liable for it. This judgment was upheld by the Court of Appeal.  The Congregation appealed to the Supreme Court.

The judgment of Supreme Court Justices confirms the two-stage test required to determine whether an employer should be vicariously liable for someone's wrongdoing.

First, a Court should consider whether the relationship between the employer and the wrongdoer is one of employment or 'akin to employment'. In applying the 'akin to employment' test, the Court should consider whether the features of the relationship are akin to employment, which may include:

• whether the work is being paid for in money or in kind;
• how integral to the organisation the work carried out by the wrongdoer is;
• the extent of the employer's control over the wrongdoer in carrying out the work;
• whether the work is being carried out for the employer's benefit or in further support of the aims of the organisation;
• what the situation is with regard to appointment and termination; and
• whether there is a hierarchy of seniority into which the relevant role fits.

The Supreme Court confirmed that it is important to recognise that the ‘akin to employment’ expansion does not undermine the traditional position that there is no vicarious liability where the wrongdoer is genuinely an independent contractor.

The Supreme Court held that the relationship between Mr S and the Congregation was akin to employment. 

The second test is the 'close connection' test - i.e. whether the wrongful conduct was so closely connected with acts that the wrongdoer was authorised to do, that the wrongful conduct can fairly and properly be regarded as done by the wrongdoer whilst acting in the course of their employment/quasi-employment.

In considering the second test in relation to this case, the Supreme Court noted that the rape did not occur as Mr S was carrying out any activities connected with his role and instead took place in his own home. It occurred at a point in time when Mr S was not exercising control over Mrs B because of his position as an elder; they were in the same room due to their close friendship, and Mr S was not wearing his metaphorical uniform at the time of the rape.

Mrs B and Mr S would not have formed a close friendship if it weren’t for his position as an elder. However, the Supreme Court ruled that this was insufficient to satisfy the close connection test because the rape was not so closely connected with acts Mr S was permitted to do for it to be fairly and properly regarded as committed in the course of his quasi-employment as an elder.

The final paragraph of the judgment provides a check, stepping back and noting that there is no convincing justification for the employer to be required to bear the cost or risk of the rape; there is no justification for extending the boundaries of vicarious liability beyond the principled boundaries already in existence.

WHAT DOES THIS MEAN FOR EMPLOYERS?

As with all cases relating to vicarious liability, this case was very fact specific.  However, it is a useful case for employers.  The judgment confirms the test to be used in vicarious liability cases.  It also confirms that employers should not be vicariously liable for independent contractors, or for acts which are not closely connected with the activities a wrongdoer is authorised to do. The case follows a recent pattern of the Supreme Court narrowing the circumstances in which employers are vicariously liable for the wrongdoing of their employees. 

Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB