Could schools and charities be liable for the wrongdoing of unpaid volunteers, including trustees and governors?
Supreme Court rules religious organisation was not vicariously liable for rape by community elder.
A recent Supreme Court case has provided helpful clarification of the circumstances in which an organisation will be found vicariously liable for the wrongful acts of an individual carrying out a voluntary unpaid role.
What is vicarious liability?
Vicarious liability is the principle that it is just for an organisation benefiting from activities to be liable for losses caused by wrongdoing committed in the course of those activities where the wrongdoer is integrated into the organisation. There is no need for the activities in question to be profit-generating. Voluntary and not-for profit organisations can be found to be vicariously liable in the same way as commercial organisations.
For detail on recent developments in the case law on vicarious liability, please see the following articles, available on our website:
When does vicarious liability arise?
The courts will ask two key questions to decide whether vicarious liability arises:
1. Is the relationship between the organisation and the wrongdoer one of employment or “akin to employment”?
When the individual is not in employment, the court will consider a range of factors to decide whether the relationship is “akin to employment”, including:
- how integral the work carried out by the wrongdoer is to the organisation;
- the extent of the organisation’s control over the wrongdoer in carrying out the work;
- whether the work is being carried out for the organisation’s benefit or in furtherance of the aims of the organisation;
- what is the situation with regard to appointment and termination; and
- whether there is a hierarchy of seniority into which the relevant role fits.
No one factor will be decisive. An unpaid volunteer or trustee could be found to be in a role “akin to employment” where the work they carry out is integral to the organisation, the volunteer’s work is controlled by the organisation and is being carried out to further its aims – which will often be the case with charitable and educational organisations.
An organisation will not be vicariously liable for the acts of an independent contractor genuinely in business on their own account. However, there can be a grey area as to whether a particular individual is in fact an employee or worker despite the wording in their contract. Organisations should be alert to the risk of vicarious liability claims in such cases.
2. Is there a close connection between the wrongdoing and the acts the wrongdoer was authorised to do?
If there is found to be an employment relationship or one “akin to employment”, the court will go on to consider whether there is a close enough connection between the wrongdoing and the duties of the wrongdoer.
The question is whether the wrongful conduct was so closely connected with acts that the wrongdoer was authorised to do that it can fairly and properly be regarded as done by the wrongdoer while acting in the course of their employment or (in the case of a volunteer) quasi-employment.
The Supreme Court affirmed the close connection test in Mohamud v WM Morrison Supermarkets plc. For more detail on this case see our article from 2016: When might a school be liable for a wrongful act of an employee? (available on our website). In this case, the Supreme Court found the supermarket was vicariously liable as the employee’s physical assault of a customer was within the "field of activities" assigned to him and it did not "consider that it is right to regard [the employee] as having metaphorically taken off his uniform the moment he stepped from behind the counter".
The “close connection” test and vicarious liability for sexual abuse of children
The “close connection” test arose in the difficult 2001 House of Lords case of Lister v Hesley Hall Ltd in which a boarding school was found liable for the damage caused by a house warden who sexually abused children resident in his boarding house. The court in that case stated that the school was vicariously liable because the house warden was specifically employed to look after the children who had been abused. In this case the wrongdoing was so closely connected with his duties that it was held to be fair and just to hold the employer vicariously liable.
The Lister judgment stated: “[the house warden] did not merely take advantage of the opportunity which employment at a residential school gave him. He abused the special position in which the school had placed him to enable it to discharge its own responsibilities, with the result that the assaults were committed by the very employee to whom the school had entrusted the care of the boys.”
If the wrongdoer’s duties had been unconnected with the care of children or the employee had no special position of responsibility for children, it is unlikely that the school would have been found vicariously liable.
Is the outcome just?
In difficult cases, a final check should be carried out by the court to ensure that the outcome is consistent with the policy underlying the principle of vicarious liability. In other words, is it fair and just that the organisation should bear the cost of the wrongdoing in the circumstances?
A recent Supreme Court judgment considered whether a religious organisation was vicariously liable for losses arising from the wrongdoing of an unpaid religious elder.
Mr S was an elder of the Barry Congregation of Jehovah’s Witnesses (the Congregation). Mr and Mrs S developed a friendship with Mr and Mrs B. Mr S became depressed and began abusing alcohol. He began to flirt with Mrs B and at one stage asked her to run away with him, which she refused. Mr S’s father (also an elder of the Congregation) encouraged Mr and Mrs B to provide emotional support to Mr S.
After a morning door-to-door evangelising together, the two couples went for lunch to a local pub. There was an argument. Mr S told Mr B he wished to divorce his wife and stated that he would convince his wife that he had committed adultery. Later that day, Mr S raped Mrs B at his home.
Thirteen years later, Mrs B reported the matter to the police and Mr S was convicted of rape. A further four years later, Mrs B brought a claim alleging that the Watch Tower and Bible Tract Society of Pennsylvania and the Congregation were vicariously liable for her personal injury, including psychiatric harm.
The High Court and the Court of Appeal agreed, finding that the Congregation was vicariously liable for the rape.
The Supreme Court decision
The Supreme Court did not agree with the lower courts that the organisation was vicariously liable and reversed the decision.
Role of elder was “akin to employment”
The Supreme Court agreed that the role of elder was akin to employment given that:
- Mr S was carrying out work on the organisation’s behalf and assigned to him by the organisation;
- Mr S was performing duties in furtherance of and integral to the aims and objectives of the organisation;
- there was an appointments and removal process for elders; and
- there was a hierarchy of which the role of elder was part.
Wrongdoing was not closely connected to authorised tasks
The Supreme Court reversed the decision of the High Court and Court of Appeal citing six reasons why the close connection test was not satisfied:
- The rape was not committed while Mr S was carrying out any activities as an elder on behalf of the organisation. Mr S was at home and not engaged in any pastoral care, religious activity or service.
- Mr S was not exercising control over Mrs B because of his position as an elder at the time of the rape. The primary reason that the rape took place was not because abuse of Mr S’s position as an elder but because he was abusing his position as a close friend of Mrs B when she was trying to help him.
- Unlike in the case of Mohamud, Mr S was not wearing a "metaphorical uniform" as an elder at the time of the rape.
- It was true that but for Mr S's role as an elder, Mrs B would not have continued her friendship with him and she would not have been with him at the time of the rape. However, the test for vicarious liability is not a "but for" test. In other words, there must be more than a causal link between the role and the wrongdoing; the close connection test must be met.
- The case was not akin to the gradual grooming of a child for sexual gratification by a person in authority over that child as the rape was a one-off attack. But even if that was the case, the prior events owed more to the close friendship with Mr S than to his role as an elder.
- There was no relevance, except as background, in the role of Mr S’s father, or the finding that the elders knew of and permitted inappropriate kissing when welcoming female members of the congregation.
The Supreme Court as a final check also considered the policy underpinning vicarious liability and concluded that there was “no convincing justification” for the organisation to bear the cost or risk of the elder’s wrongdoing.
This case is helpful in clarifying the circumstances in which a charity or school might be found liable for the acts of a volunteer, governor, trustee, or indeed an employee.
Where volunteers are integral to the organisation, controlled by it, and carrying out work to further its charitable or educational purposes, it is likely that they will be found to be in a role “akin to employment”. The key question will be whether the volunteer’s wrongdoing was closely enough connected to their authorised tasks. The Supreme Court confirmed in this case that the same two stage test should apply in “akin to employment” cases.
The Supreme Court pointed out in its judgment that this case is “significantly different” from sex abuse cases, such as Lister, where the employee was “ostensibly performing their duties” at the time of the wrongdoing. It is certainly more likely that the close connection test would be met where volunteers or employees responsible for the care of children or vulnerable people engage in sexual, physical or emotional abuse of those in their care. This is because the wrongdoing is likely to be found to be carried out while ostensibly carrying out that caring role. And this could be the case even if the wrongdoing does not take place on work premises or in work hours.
The Supreme Court also confirmed in this case that the final check of considering the policy behind vicarious liability should only be considered in difficult cases after applying the two-stage test. In the case of acts causing harm to children and vulnerable people by those tasked with their care, it is arguably more likely that the court will consider it just to find the organisation vicariously liable.
How Wrigleys can help
The employment team at Wrigleys is expert in advising charities, third sector and education sector clients on managing volunteers and employees working with children and vulnerable people, including dealing with matters involving safeguarding and police involvement.
Importantly, we work within the wider charities, social economy, and education teams at Wrigleys and so we have in-depth understanding of how our clients’ governance and regulatory obligations impact on their volunteer arrangements, employment policies, processes and decisions.