School not vicariously liable for actions of a student who sexually assaulted a pupil during work experience placement

Background

In the case of MXX v A Secondary School, the appellant was a pupil at a co-educational secondary school. The pupil joined the school in 2013 at age 13, and in February 2014 an 18-year old former pupil undertook a one-week work experience placement at the School. Following the placement, the work experience student and the pupil entered into Facebook communication, and in August 2014 the student committed sexual offences against the pupil.

The pupil brought a personal injury claim against the School. In issue was whether the School was vicariously liable for the actions of the work experience student.

Vicarious liability

There is a two stage test to establish vicarious liability:

• Stage one of the test is whether there is an employment relationship, or a relationship "akin to employment" between the alleged wrongdoer and the person alleged to be liable (in this case, the school).
• The second stage of the test is whether there is a sufficiently close connection between the relationship and the wrongdoing.

The High Court dismissed the pupil's claim against the school, finding that it would not be fair or reasonable to conclude that a one-week work placement with the school could create a relationship akin to employment. The pupil appealed to the Court of Appeal.

Outcome

The Court of Appeal dismissed the appeal, but disagreed with some of the High Court's reasoning. In respect of the two-stage test for vicarious liability, the Court of Appeal found that:

• the relationship was akin to employment. The student was at the school to experience the work of a teacher. He was given responsibility for carrying out some of the work of the PE department, was closely supervised at all times and was given clear direction in any activity undertaken with pupils. He was addressed in the same way as a teacher which suggested he was being held out by the school as a junior member of staff. The work he carried out was more than shadowing and observing, but even if this is all he had been doing, this would not have precluded the existence of a relationship akin to employment.
• however, there was not a sufficiently close connection between the relationship and the work experience student's future wrongdoing. He had no caring or pastoral responsibilities during the placement. His access to the pupil during the placement was limited as he was supervised closely. It was not until the placement had finished that he started communicating with the pupil, and such contact over social media was in any event prohibited under the school's policies. The student had groomed the pupil before committing the offences. The grooming behaviour was not inextricably linked with the placement. It would not therefore be fair and just to hold the school vicariously liable for his actions.

Learning points

Whilst the appeal outcome ultimately went in the school's favour, this case demonstrates how a work experience placement can create a relationship 'akin to employment'.

In this case, the wrongdoing was the sexual offences committed by the work experience student. The assault was far removed from anything the work experience student will have been authorised to do during the placement, and it is for this reason that the school was ultimately not vicariously liable for the actions of the work experience student.

For more information or advice on vicarious liability, please contact Ellie Boyd on in our Employment team on 020 7665 0940, or complete the form below.