Employers can be Vicariously Liable for Non-Employees

A Diocese has been found to be vicariously liable for the tortious acts of a priest even though he was not their employee.

In JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust, the Court of Appeal considered whether the nature of the relationship between a priest and a Diocese was such that vicarious liability ought to attach to it.  There was no formal contract between the parties and they did not regard themselves as employer and employee. The Diocese had an advisory, rather than supervisory, role in relation to the priest, had no power of dismissal and did not pay him. 

The Court of Appeal held that organisations should be liable where the nature of the relationship is close to an employment relationship.  The following factors are relevant:

• The degree of control the organisation has over the individual – whether the person is accountable to the organisation for the way he does the work, rather than whether the organisation has the legal power to control how the person carries out his work; 
• Organisation – how far the individual’s activity is a central part of the organisation’s business; 
• Integration – whether the individual’s activities are integrated into the organisational structure of the enterprise;
• Whether the individual is in business on his own account. 

Applying these tests, the relationship was close enough to an employment relationship to make it just and fair to impose vicarious liability. 

Employers need to be aware that they may be vicariously liable for the acts of individuals working for them even though they may not be their employees.  This could include casual workers, secondees and even workers who consider themselves to be independent contractors if they are not genuinely in business on their own account.  However, even where the nature of the relationship is found to be sufficiently close for vicarious liability to arise, employers will only be liable where the acts are committed in the course of the "employment".