The Court of Appeal has recently considered whether a school was vicariously liable for the actions of a student who had undertaken a work experience placement at the school and used it to gain access to, groom and abuse one of the school’s pupils.
‘Vicarious liability’ is a legal principle which imposes a strict, no-fault, liability in certain situations for wrongs committed by another person. When asked to impose vicarious liability, the courts impose a two-stage test:
- Is the relationship between the wrongdoer and the person against whom vicarious liability is claimed either one of employment, or one that is ‘akin to employment’ (but not of independent contractor and client)?
- Is the wrongful conduct so closely connected with acts that the wrongdoer was authorised to do that they can fairly and properly be regarded as being done ‘in the course of’ that employment / relationship akin to employment?
Earlier this year, we reported that the Supreme Court had held that, where the relationship is alleged to be one that is ‘akin to employment’:
- Stage one: requires the court to carefully consider which features of the relationship are similar to, or different from, a contract of employment.
- Stage two: requires the court to carefully consider the link/connection between the wrongful conduct and the wrongdoer’s authorised activities.
- Final check: in difficult cases, it can be a useful final check on the justice of the outcome to stand back and consider whether that outcome is consistent with the underlying policy of the vicarious liability doctrine.
It is against this legal backdrop that the Court of Appeal had to consider the relationship between the school and the work experience student. PXM, an 18-year-old male student, undertook a one-week work experience placement with his former school’s PE department. As part of his work experience, he met MXX, a 13-year-old female pupil at the school, and invited her to attend an afterschool sports club he was holding. A few days after his placement ended, PXM began communicating with MXX via social media. These grooming messages continued for several months. The contact between PXM and MXX culminated in PXM committing assault, battery and intentional injury against MXX. Amongst other criminal charges, PXM subsequently pleaded guilty to sexual activity with a child.
MXX brought a personal injury claim asserting that the school were vicariously liable for PXM’s actions. At first instance, the High Court held that the school was not vicariously liable because PXM’s work experience placement did not amount to a relationship which was ‘akin to employment’. That decision was appealed.
The Court of Appeal held that the High Court had failed to consider key pieces of relevant evidence, which tended to show that PXM had ‘groomed’ MXX during his work experience placement, including:
- Facebook messages in which PXM said that he had tried to find MXX in class to teach her (demonstrating his mindset at the relevant time); and
- The fact that PXM and MXX were connected on Facebook within days of his placement ending, despite the fact he knew this was forbidden.
Proceeding on the assumption that PXM had used his work experience placement to ‘groom’ MXX, the Court of Appeal then considered the two key elements of the test for vicarious liability:
- Was the work experience placement a relationship ‘akin to employment’? The Court of Appeal held that it was. During the placement, PXM had carried out some of the tasks of a junior PE teacher and the school had benefited from this work in two key ways: (a) the actual PE teacher did not need to carry out those tasks; and (b) work experience placements acted as an aid to later teacher recruitment. PXM had been subject to the school’s safeguarding policies during the placement. When he was teaching PE lessons, pupils had been told to address PXM as ‘Mr’ and treat him as they would treat any other teacher.
- Was there a sufficiently close connection between PXM’s authorised work experience activity and his wrongdoing, so that the school could fairly and properly be held liable? The Court of Appeal held that the MXX’s claim failed this stage of the test. There was not a sufficiently ‘close connection’ between the duties the school had authorised and delegated to PXM during his work experience placement and his abuse of MXX. During the placement, PXM role at the school was limited and he had no caring or pastoral responsibilities for pupils. Nor could PXM’s grooming of MXX be said to be ‘inextricably woven’ with his authorised/delegated work experience duties. Therefore, it would not be fair and just to hold the school vicariously liable for PXM’s wrongdoing.
The Court of Appeal therefore dismissed the appeal and held that, although the work experience placement was ‘akin to employment’, the school was ultimately not vicariously liable for PXM’s grooming and abuse of MXX because there was not a sufficiently close connection between his authorised activities and his wrongdoing.
Although the school in this case was ultimately found not to be liable, the outcome could easily have been different in another case on slightly different facts. Therefore, work experience placement providers ought to put clear behavioural rules in place, identify whether work experience activities may amount to ‘work’ and consider the extent to which those activities grant the participant with access to children or vulnerable adults.
MXX v A Secondary School [2023] EWCA Civ 996
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For further information, please contact:
Emma Ahmed, Hill Dickinson
emma.ahmed@hilldickinson.com
