Vicarious Liability in relation to claims against religious bodies – Barry Congregation of Jehovah’s Witnesses v BXB [2021] EWCA Civ 356

In the case of Barry Congregation of Jehovah’s Witnesses v BXB [2021] EWCA Civ 356 the High Court held that a religious organisation could be held liable for sexual harassment undertaken by one of its elders.

Legal background

A developing thread of jurisprudence in the sphere of vicarious liability is that which concerns religious organisations, and their vicarious liability for rape or abuse of victims by their employees, leaders, or agents. Recent cases which have made their way through the higher courts have frequently related to the Catholic Church, but in February, the Court of Appeal heard about a rape which was perpetrated by an elder of the Jehovah’s Witnesses. The victim was a fellow Jehovah’s Witness, and the appeal was concerned with whether the Jehovah’s Witnesses as an organisation should be held vicariously liable.

Factual background

Mrs B was a congregant at the Barry Congregation of Jehovah’s Witnesses. She became friendly with Mark Sewell, who was a ministerial servant in the congregation. Not long after, he became an elder. He was inappropriately behaved to Mrs B, kissing her on the lips to greet her, but she was encouraged by the teachings of the congregation and those around her that elders’ actions and decisions are generally not to be questioned and to be regarded as unimpeachable.

Eventually, Mr Sewell raped Mrs B in the back of his house, and was convicted and sentenced to a term of imprisonment.

The law

Vicarious liability – the two-stage test

The test for vicarious liability in cases of this type was elucidated by Lord Phillips in 2012 a case known as Christian Brothers. It is a two-stage test, namely:

The relationship between the tortfeasor and the parties said to be vicariously liable to determine whether it is one that is capable of giving rise to vicarious liability (stage 1);
The connection that links the relationship between those two parties and the act or omission of the tortfeasor (stage 2).

The decision of the High Court

Stage 1 – Relationship between Mr Sewell and the Jehovah’s Witnesses

The structure of the Jehovah’s Witnesses, said the court, could fairly be described as hierarchical, and that it exercises control over its members. The elders were leaders of the congregation, and that the congregation acts as a body through its elders.

The court also considered that, as the congregation had conferred power and authority onto Mr Sewell by making him a leader, which created a risk that that power might be abused, and that the rape might occur.

As such, the court ruled that the original judge was entitled to conclude that the relationship between elders and the Jehovah’s Witnesses was one that could be capable of giving rise to vicarious liability.

Stage 2 – Connection linking the relationship and the act of Mr Sewell

The judge accepted that the rape did not occur when Mark Sewell was performing any religious duty. However, that was not a necessary ingredient for vicarious liability of this kind. The judge also found, as he was entitled to, that but for Mark Sewell’s and his father’s position as elders, Mr and Mrs B would probably not have remained friends with Mark Sewell by the time of the rape. There was, therefore, a ‘strong causative link’. The Defendants created or significantly enhanced the risk that Mark Sewell would sexually abuse Mrs B by creating the conditions in which the two might be alone together.

For both of the reasons above, the Barry Congregation of Jehovah’s Witnesses’ appeal was dismissed.

Chris Hadrill, Partner in the employment team at Redmans, commented on the case: “This case shows that the actions of employees or officers can render an organisation liable for unlawful acts even if the unlawful act, when undertaken, is not strictly in the course of their employment (or engagement).”

Link to judgment: https://www.bailii.org/ew/cases/EWCA/Civ/2021/356.html