415: Are religious organisations vicariously liable for the conduct of clergy? Supreme Court finding in Jehovah’s Witnesses case

An employer may be held to be vicariously liable for an employee’s wrongful conduct where that conduct is sufficiently closely connected to the work the employee is authorised to do, provided that it is fair and just to hold the employer liable. This also applies to relationships which are akin to employment, such as clergy working in religious organisations.

In Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB, the Supreme Court has ruled that the Jehovah’s Witnesses organisation was not vicariously liable for the rape of a congregation member committed by an elder at his home because there was no direct connection between this unlawful act and the work he was authorised to do.

Mr and Mrs B attended services of the Barry Congregation of Jehovah’s Witnesses and became close friends with Mr S, an elder, and his wife. Elders are a group of men with congregational responsibilities who sit above another group of men, ministerial servants, who in turn sit above the ordinary members of the congregation. When Mr S began abusing alcohol and suffering from depression, his father, another elder, asked Mr and Mrs B to provide him with extra support. Mr S was convicted of raping Mrs B in his home after the two couples had spent the day evangelising and then socialising together. Mr S was subsequently convicted of rape. Mrs B brought a personal injury claim against the Jehovah’s Witnesses organisation, claiming that it was vicariously liable for the attack.

Both the High Court and the Court of Appeal upheld Mrs B’s claim, ruling that vicarious liability was established because had it not been for the fact that Mr S was an elder, and that Mrs B had received instruction from another elder to support him, their friendship would have come to an end and the rape would not have occurred. However, the Supreme Court has now allowed an appeal by the Jehovah’s Witnesses organisation.

The Supreme Court reviewed the relevant case law and confirmed that the legal test for vicarious liability applies to all cases, including cases of sexual abuse. There is a two stage test. Firstly, there must be an employment or quasi-employment relationship between the employer and the wrongdoer. Secondly, the wrongful conduct must be so closely connected with the wrongdoer’s authorised activities that it can be regarded as having been done whilst acting in the course of their employment or quasi-employment. In difficult cases, it is useful to consider as a final check whether the outcome is consistent with the underlying policy justification for vicarious liability.

In this case, the Supreme Court agreed with the lower courts that the elder was in a quasi-employment relationship with the Jehovah’s Witnesses organisation. Although his role was unpaid, he was carrying out work on behalf of the organisation which was integral to its aims and objectives.  However, the Supreme Court disagreed with the lower courts as regards the close connection test. The rape was committed at the elder’s home, and he was not performing any work connected to his role or exercising control over the victim because of that role, a factor common in child abuse cases. The Supreme Court held that Mr S abused his position as a close friend of the victim, rather than as an elder. There was also no policy justification for the Jehovah’s Witnesses organisation to bear the risk or costs of a rape committed by an elder.

This judgment confirms that the two-stage test for vicarious liability will apply to all cases. It is also useful to have confirmation that elders and clergy are likely to be regarded as quasi-employees for these purposes, meaning that the principle of vicarious liability will apply to many faith-based organisations. The Supreme Court has, in addition, confirmed that organisations will not be vicariously liable just because they have deeper pockets than individual defendants.