In MXX v A Secondary School (the School), the Court of Appeal has held that the School was not vicariously liable for the acts of sexual assault on a pupil at the school by a college teaching student who had been on a one-week work experience placement (WEP).
The background to the case
PXM was an 18-year-old college student who wanted to qualify as a PE teacher. PXM was also a former pupil at the School. In February 2014 PXM undertook a one-week WEP at the School. He provided some help with PE lessons and he assisted with the provision of after school sports clubs to the school’s pupils. He was supervised at all times.
Prior to the WEP commencing, PXM was taken through several of the School’s policies including the staff Code of Conduct and the ‘Guidance for safe working practices for the protection of all children, young people, vulnerable adults and staff at a Secondary School’. He was required to sign a ‘Staff Declaration’ form, confirming that he had read the guidance and understood his responsibility for child protection at the School.
What happened
During the WEP, PXM interacted with MXX, a 13-year-old female pupil, on two occasions. The first time was when he suggested that MXX attend an after-school badminton club and the second time was during a session of the badminton club. There was no social media contact between MXX and PXM during his WEP. However, by early March 2014, PXM and MXX were communicating on Facebook and in August 2014, PXM sexually assaulted MXX, for which he was later arrested and pleaded guilty.
MXX brought proceedings against the School seeking damages for personal injury following the sexual assaults, arguing that the School was vicariously liable for PXM’s conduct towards her.
Whether an employer/organisation is vicariously liable depends on whether a two-stage test has been satisfied. This is:
- Stage 1 – whether there is an employment relationship or a relationship that is ‘akin to employment’ between the person who has committed the wrongdoing and the organisation – here the School; and
- Stage 2 – whether there is a sufficiently close connection between the relationship set out at stage 1 and the wrongdoing.
The court’s ruling
The Court of Appeal concluded the stage 1 had been satisfied. The relationship between the School and PXM, even though it was a WEP of one week, was akin to an employment relationship. However, based on the facts, stage 2 was not satisfied. There was an insufficiently close connection between PXM’s role i.e. his duties, and the later wrongdoing to enable the wrongdoing to be properly regarded as done by PXM in the course of his employment or quasi-employment. PXM’s role at the School did not include any caring or pastoral responsibility for the pupils. He was also or should have been closely supervised at all times and had no access to MXX on her own. He held no position of authority over pupils, even though he was addressed as though he was a member of staff. It was not until after the WEP ended that any communication took place on Facebook and such communication was specifically prohibited by the School’s policies.
Although PXM groomed MXX during his WEP, his behaviour was not inextricably linked with the role he carried out at the School (i.e. he had no pastoral duties) such that it would be fair and just to hold the School vicariously liable for PXM’s wrongful acts. PXM’s WEP provided an opportunity for PXM to later meet MXX and communicate with her on Facebook. However, this was not sufficient to satisfy the close connection test.
Lessons to learn
This case is a reminder that a relationship between a school and an individual assisting with duties may be treated in law as being akin to an employment relationship. This first test of vicarious liability may be satisfied relatively easily, depending on all the facts. Regarding the second test, the fact that the WEP student had no pastoral responsibilities and was closely supervised is significant. However, it is conceivable that a school could be liable for the unlawful acts of e.g. a gap year student who has pastoral responsibilities. This will depend on all the facts.
There have, of course, been a number of well documented cases of schools being held liable for sexual abuse committed against pupils (including former pupils) by existing or former members of staff.
How Moore Barlow can help
If you have any concerns about the behaviour of your staff or anyone else who is interacting with your pupils (including former members of staff), please do not hesitate to contact our Independent schools team and we will guide you through any steps that may need to be taken.
