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helenhall5
Mar 154 min read

Vicarious Liability and Unpaid Helpers

Rev'd Dr Helen Hall, Associate Professor NLS https://www.ntu.ac.uk/staff-profiles/law/helen-hall



The law of vicarious liability has notoriously been “on the move” throughout the twenty-first century.   Every time that the Supreme Court has attempted to clarify the position and bring the doctrine within clear and certain parameters, it has leapt back up to cause fresh mayhem.  Like a monster from a successful Hollywood horror franchise, it refuses to lie down and accept defeat.   Even though the heroes sometimes appear to have won, we all know that it is still out there, lurking in the shadows or the deep ocean, waiting for the sequel.


There are numerous aspects of vicarious liability which remain unsettled, but this blog concerns the particular issue of unpaid helpers.   In order to understand this particular problem, we first need to take a step back, and consider the operation of doctrine in general terms.    Simply put, vicarious liability works as follows: A commits a tort (civil wrong) and B is liable for this tort, because at the time of the wrongdoing, A was acting for B.  The Latin phrase “Qui facit per alium facit per se” is sometimes used to explain this.   Roughly translated this means “he who acts through another, acts himself”, or to put it another way: you are responsible for what your minions do.  This raises the question, who are your minions?  (It also raises the question of “when are minions acting for their boss, and when are they acting for themselves?” but that is a subject for a different blog).


Historically, vicarious liability was concerned with making defendants responsible for activities carried out by their employees or agents.   This was logical, but it created problems when torts were committed by individuals who were definitely not employees, but nevertheless clearly working for the benefit of someone else.   For example, it arose in litigation concerning Roman Catholic priests.  It was well established that the relationship between priests and their Church was governed by religious rather than secular law, but it seemed manifestly unjust to allow faith groups to escape liability on this basis.  In JGE v Portsmouth Roman Catholic Diocesan Trustees, the court concluded that if individuals were working for an organisation, under its control and receiving payment for its services, then they were in a position akin to employment.    Consequently, because they were very like employees, it was appropriate to treat them as employees for the purposes of vicarious liability.


The ruling had a lot of pragmatic merit, but the difficulty ever since has been drawing boundaries around this concept of quasi employment.   A wide variety of different relationships have been classified as being “akin” to the ties of employment, for example prisoners working in a kitchen and prison authorities, or foster parents and Local Authorities.    At one stage, the Court of Appeal considered that some independent contractors could be in a position akin to employment, but the Supreme Court firmly rejected this in Various Claimants v Barclays Bank.  


The Supreme Court regarded this as a return to the previous orthodoxy.   As they pointed out, independent contractors had always been outside of the scope of vicarious liability.   However, unpaid voluntary roles were formerly also beyond the pale as far as vicarious liability was concerned, but the Barclays judgment did not overturn or even criticise decisions which had permitted people in such positions to be treated as akin to employees for the purposes of vicarious liability: see for examples A v Watchtower Bible and Tract Society.


This begs the so far unanswered question as to why the exchange of money should be a line in the sand.   We seem to have arrived at a place where if a non-employee is directly paid, then they are much less likely to be in a position akin to employment.   This seems an illogical stance to take, given that the exchange of money may increase the capacity for dependence and control.   An independent contractor may be very financially reliant on a regular and well-paying client, whereas a volunteer can walk away and give their services to another organisation.


The seemingly arbitrary place at which the boundary is drawn has exacerbated the difficulty that courts have had in determining what kinds of relationships are close enough to employment   For example, in Blackpool Football Club v DSN it was decided a talent scout was not akin to an employee of a football club, even though the club endorsed their close ties, provided him status and access to VIP areas.   It was also acknowledged by both sides that without transfer deals enabled by this scout, the club would have been unable to survive financially.  


In contrast, in MXX v A Secondary School the Court of Appeal were willing to find that a college student on a brief work experience placement was in a position akin to employment, despite far less mutual benefit or practical control in the arrangement.

It is difficult to identify any consistent pattern within the case law.   While this reality provides grist to the mill of legal academics, it also raises very real problems for organisations trying to decide on whether and how to rely on volunteers, or offer unpaid internship opportunities.   It seems that predicting when and where vicarious liability will attach is likely to remain challenging for the foreseeable future.


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