Sometimes respondents in employment cases raise arguments in their defence which, although perfectly arguable in law, do not reflect particularly well on them. One of these is the defence, in a discrimination claim, that any other employee would have been treated just as badly. JGE v (1) The English Province of Our Lady of Charity (2) Trustees of Portsmouth RC Diocesan Trust [2011] is an example of another type of defence which some might think leaves a nasty taste in the mouth. It concerns the concept of vicarious liability – where an employer can be found liable for wrongs committed by its employees in the course of their employment. The case concerned allegations of sexual abuse of a young child by a Catholic priest. When the claimant sought to hold the Diocese in which the priest worked responsible for his actions, the counter argument was that he was not an employee of the church, and it therefore fell outside the scope of vicarious liability. Generally speaking, in the past, the clergy of both the Catholic church and the Church of England have not been regarded as employees, in that they do not have a contractual relationship with the relevant churches, although nonconformist ministers are generally employed under a contract of employment. Continue reading →