Could Schools And Charities Be Liable For The Wrongdoing Of Unpaid Volunteers, Including Trustees And Governors?

• Published date: 09 June 2023
• Subject Matter: Employment and HR, Consumer Protection, Litigation, Mediation & Arbitration, Family and Matrimonial, Employee Rights/ Labour Relations, Court Procedure, Education, Divorce
• Law Firm: Wrigleys Solicitors
• Author: Ms Alacoque Marvin

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:

https://www.wrigleys.co.uk/news/employment-hr/employer-not-vicariously-liable-for-the-vengeful-act-of-an-employee/

https://www.wrigleys.co.uk/news/employment-hr/was-an-employer-negligent-or-vicariously-liable-for-injury-sustained-during-an-office-party-at-work-premises/

https://www.wrigleys.co.uk/news/education/when-might-a-school-be-liable-for-a-wrongful-act-of-an-employee/

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...