Religious group found not vicariously liable for rape

A recent case again shows the importance of the specific factual details when considering whether organisations should be held vicariously liable for the offences of their staff.

Just as a reminder, vicarious liability involves a two-stage test:

• Firstly, whether the relationship between the parties is one of employment or ‘akin to employment’; and
• Secondly, the ‘close connection’ test. This focuses on whether the conduct was so closely connected with acts that the wrongdoer was authorised to do, that it can fairly be regarded as done while acting in the course of their employment / quasi-employment.

 “Akin to employment”

The Supreme Court has found that a Jehovah’s Witness congregation was not vicariously liable for the rape of a member committed by an ‘elder’ (Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB). Though not an employee, the elder’s role was judged to be akin to employment as he was carrying out work on behalf of Jehovah’s Witness in furtherance of the aims of the organisation; there were clear appointment and termination processes in place and a hierarchical structure into which his role fitted. This fits with previous case law such as JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust (2012), in which a priest was held to have an akin to employment relationship with the diocese due to its control over him and his role within it.

An example of a case which went the other way is the court’s consideration of whether Barry Bennel, a convicted paedophile and sometime scout for Manchester City Football Club (MCFC), was in a role akin to employment with the club. There, the judge held their scouting role and relationship was “insufficient to give rise to liability”. The same was true in Barclays Bank plc v Various Claimants [2020] UKSC 13, in which the Supreme Court held a self-employed medical practitioner was not in a relationship akin to employment with a bank that had engaged him to perform medical examinations, during which he had committed assaults. This case showed beyond doubt that ‘akin to employment’ does not stretch to a relationship with a self-employed person who is genuinely "in business on their own account".

“Close connection”

This test, set out in Lister v Hesley Hall (2001), considers whether the wrongs were so closely connected with the employment that it would be fair and just to hold the employer vicariously liable. While Lister case demonstrate that sexual abuse of a child by someone who is authorised to look after them will generally satisfy the close connection test, the same was not true in this Jehovah’s Witness case noted above. Relevant factors included the fact the assault was committed after evangelising at the elder’s home in a social context, as the parties were friends, and that it was not a progression from previous behaviour but rather a one-off offence.

Though a very upsetting outcome for the victim, this judgement can be seen as broadly in line with other recent cases such as WM Morrison Supermarkets plc v Various Claimants, in which the retailer escaped liability for data breaches by a rogue employee; and Chell v Tarmac Cement and Lime Ltd, where a practical joke which went wrong was held to be sufficiently removed from the employee’s authorised duties. A similar decision was reached in N v Chief Constable of Merseyside Police, in which a policeman who had used his position as an opportunity to commit an assault was held to be "on a frolic of his own".

Action for employers

Despite the organisation escaping liability this time, businesses should still be careful to protect their workers, with a Judge in another case noting: “an employer has a responsibility to act proactively, rather than reactively, to identify and safeguard against risks to the health, wellbeing and safety of its staff.”

Advisable steps include:

• Clear Dignity at Work and Sexual Harassment policies, which should be regularly updated, with ongoing, mandatory training in this area.
• Whistleblowing policies must also be made clear with easily accessible helplines to ensure employees are able to confidentially report wrongdoing without fear of reprisals.
• There must also be systems in place to ensure swift intervention when warning signs crop up, with robust action taken via grievance/disciplinary processes to ensure that the highest possible standards are maintained.
• Employers will need to be further aware of their duties if the Worker Protection (Amendment of Equality Act 2010) Bill progresses, which is currently making its way through parliament and is expected to become law in 2024. Under the Bill, employers will be directly liable for harassment of employees by third parties, such as customers, unless they have taken all reasonable steps to prevent that harassment.