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  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.
Earlier cases such as Lister & ors v Hesley Hall Ltd 2001 involving the abuse of vulnerable persons by workers have already expanded the scope of vicarious liability to cover actions which are not part of the employee’s duties but are closely connected to those duties.
In this case Mr Justice MacDuff analysed the relationship between priest and church and concluded that the label applied to the relationship was irrelevant. Whether or not the relationship was “akin to employment” was, strictly, irrelevant: what mattered for the the principle of vicarious liability to be extended to a relationship – such as that in the current case, which in fact lacked many of the key elements of an employment relationship – was that all the circumstances point to “a sufficiently close connection”:
…it is the nature and closeness of the relationship which is the test…This close connection may be easier to recognise than to define. The court will look carefully at the full nature of the relationship. All the surrounding facts and circumstances are to be considered…
In this case, particularly strong factors included the empowerment and granting of authority to the priest, which gave rise to the risk of him abusing or misusing his power. This proposition is likely to be tested again soon.