Work experience student was in a role akin to employment but school was not vicariously liable for sexual assault.
We have previously reported on key cases on vicarious liability, which is where an organisation is sued in relation to harm caused by an employee or someone in a similar role.
See our recent article Could schools and charities be liable for the wrongdoing of unpaid volunteers, including trustees and governors? for more detail on the key legal questions in vicarious liability claims.
The courts will ask two key questions to decide whether vicarious liability arises:
- Is the relationship between the organisation and the wrongdoer one of employment or "akin to employment"?
- Is there a close connection between the wrongdoing and the acts the wrongdoer was authorised to do?
In a recent case, the Court of Appeal considered whether a school should be held vicariously liable for the sexual assault of a Year 9 pupil by an 18 year old work experience student.
Case details: MXX v A Secondary School
An 18 year old college student hoping to become a PE teacher (X) was given a week's work experience within the PE department of his former school. X assisted the PE teachers and worked under their supervision by, for example, running warm ups, coaching groups of students, assisting with sorting out equipment and washing bibs. X was expected to attend during each school day and there was a strong expectation that he would attend after school clubs. Pupils were told to treat X as they would any member of staff.
X came into contact with a Year 9 pupil (Y) during the week. Very soon after the work experience ended they made contact on Facebook and they began a relationship. X was arrested on charges including sexual activity with a child (Y) which took place some six months after the work experience week.
Y brought a personal injury claim in the high court seeking damages of £27,500 for psychiatric illness from the school arising from the sexual assault by X. The High Court initially dismissed the claim on the basis that X was not in a role akin to employment during his work experience, taking into account that: the school was not benefiting from the assistance of X, rather it was doing him a favour by giving him the experience; that X's tasks were "minor ancillary tasks"; and that X was supervised and closely directed by the school at all times.
On appeal, the Court of Appeal concluded that the school was not vicariously liable but disagreed with the High Court in some respects.
Work experience student was in a role akin to employment
Importantly, the Court of Appeal disagreed with the High Court and ruled that X was in a role akin to employment. In making this decision it took into account that:
- X was carrying out some of the work of the PE department and therefore the business of the school;
- the tasks X undertook provided some benefits to the school, the staff and the pupils and there were "generic benefits" to the school from providing work experience opportunities in relation to encouraging new entrants to the profession;
- close direction and control of X by the school was suggestive of an employment type relationship;
- the requirement on X to understand and accept the school's safeguarding policy showed X was being treated in a similar way to other staff; and
- X was held out to pupils as being akin to a junior teacher or teaching assistant.
Although the Court of Appeal held (in contrast to the High Court) that X began to groom Y during the work experience week, it agreed that there was not sufficient connection between the wrongdoing and the tasks X was authorised to do. In making this decision it took into account that: X had no caring or pastoral responsibility for the pupils (an important factor in previous child abuse cases); X was or should have been kept under close supervision at all times; X held no position of authority over the pupils; no communication took place via Facebook while X was on work experience and such communication was specifically prohibited by the school.
Comment
This judgment follows the approach taken in other cases, such as that in our linked article above regarding a volunteer elder of a religious organisation. It highlights that individuals who are carrying out roles within an organisation on a voluntary / unpaid basis can be in a role akin to employment for the purposes of a vicarious liability claim. It also highlights that the role within the organisation may be fairly limited and short-lived but still give rise to a potential claim, depending on the nature of the tasks being carried out.
There are heightened risks of vicarious liability claims relating to abuse where the role includes care or responsibility for children and vulnerable adults. This is because it is likely to be found that the wrongdoing was closely enough connected to the role in those cases.
Organisations should ensure that volunteers, including work experience students of any age, are provided with clear guidance at the outset on relevant policies and codes of conduct, including e-safety and social media policy.
Communicating the remit of a work experience student's role to them clearly, and asking them to sign a written document setting out that remit, will help to clarify the role for all parties and evidence the tasks they were asked to do.
Organisations should be alive to the risks of entering into less formal arrangements with individuals who are known to them as these could give rise to unclear boundaries and the lack of an evidential papertrail.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
