Individual abusers are normally responsible for abuse they commit, and this will continue to be the case. However, in many cases of historical abuse, the abuser may be dead or not worth suing. In that case, victims may be able to sue a local authority or the abuser’s employer – who, unlike most abusers, will have insurance.

The courts recognise this state of affairs, and seem willing to expand the boundaries about whether a local authority or employer will be liable for the abuse.

Each case or set of circumstances is different, and our experienced lawyers can give you practical advice on when you may be liable for abuse committed by someone who works, or once worked, for you. But previous cases give an idea of when the courts identify an employment relationship between an abuser and a local authority or other organisation:

where the abuser is a paid employee, and there is a 'close connection' between the employee’s duties and the abuse, or
where the abuser is unpaid but working under the control or direction of the local authority/employer, and there is a close connection with their duties, or
where the abuser is not a paid or unpaid employee, and is not working under the direction or control of the local authority/employer, but is still doing something for their benefit, and there is a close connection between the service provided and the abuse.

What is a close connection?

For an organisation to be liable for the abuse carried out by an individual, there must be a close connection between the abuse and the type of work being carried out when the abuse took place.

Again, this is a complex area and has been discussed in fine legal detail in many cases. Our team can give you practical and accessible guidance on what ‘a close connection’ means in your particular circumstances, but the examples below should give you an idea of what the courts may describe as a close connection.

Example 1 – boarding school duties: a warden at a boarding school abused children in the school. Part of the warden’s duties included caring for and monitoring the boarders, and so the Court held there was a close connection between that aspect of his job and the abuse. The warden’s employer was therefore liable for the abuse.
Example 2 – after-school supervision: a teacher sexually abused a pupil in school after the school day ended. As the teacher was supervising the pupil at the time it was held there was a close connection between that aspect of his work and the abuse, so his employer was liable.
Example 3 – contracted-out health checks: a doctor was asked by an employer to carry out health checks on people applying to work for the employer, and then abused them during the check. The doctor was not a paid employee; the abuse did not take place on the employer’s premises; and the doctor was effectively working as an independent contractor. Even so, because the abuse took place during a medical examination at the request, and for the benefit, of the employer, the court saw a close connection with the abuse. The employer was therefore liable for the abuse carried out by the doctor.

Other ways in which employers/local authorities can be liable

Most charities, voluntary groups, churches and local authorities are now aware of the importance of vetting their staff and volunteers, and it’s vital not to cut corners on this. If a potential employee has a history of abusing children, and proper vetting does not take place, then you may be liable for any compensation claims.

In addition, if abuse is reported to you, and you fail to take proper action, you may also be liable.

Insurance and contractors

One key factor in whether an individual or an organisation is likely to be found liable for damages is insurance. If an abuser is not worth suing – perhaps because they are not insured – their victim may well claim against their employer or the local authority instead.

Therefore, when contracting out services (anything from health checks to cleaning services), it is important to check that the contractor you are instructing has the appropriate liability insurance in place. This should help to ensure that they, rather than you, are exposed to claims for compensation.

Charities, churches and other organisations should be aware that the law on close connection will continue to evolve. We believe the courts will further expand the circumstances in which organisations are found responsible for abuse by individuals, so the current interpretations are certainly not set in stone.

With any current or historical claim involving individuals who work with your organisation, or have done so in the past, we recommend seeking advice from a lawyer with specialist experience in this complex area.