School ruled not to be vicariously liable for sexual assault

The Court of Appeal has ruled that a school was not vicariously liable for a sexual assault on a pupil by a student who had recently undertaken a work experience placement at the school.

When can employers be held vicariously liable?

An employer can be held vicariously liable for the wrongful acts of its employees committed in the course of their employment. An employer can also be held liable for the acts of others where the relationship is “akin to employment”. In order for the employer to be liable, the wrongdoer’s conduct must be so closely connected with acts that they are authorised to do, that the conduct can fairly and properly be regarded as done while acting in the course of their “employment”. This is called the “close connection” test.

MXX v A Secondary School

In the last week of February 2014, PXM, an 18-year old former pupil, undertook a work experience placement at the school; he was at college and hoping to qualify as a PE teacher. By early March 2014, he and a 13 year old pupil, MXX, were talking to each other on Facebook. In August 2014, he sexually assaulted MXX, and in September 2014 he was arrested and later pleaded guilty to sexual activity with a child and causing a child to watch a sexual act.

MXX brought a personal injury claim against the school which the High Court rejected, ruling that the employer was not vicariously liable for PXM’s wrongful acts.It considered that it wasn’t fair, just and reasonable to conclude that a one-week work experience placement resulted in a relationship which was “akin to employment”. It also considered that there wasn’t a sufficiently close connection between PXM’s wrongful acts and those he was authorised to do while undertaking the work placement, and so the “close connection” test was not met.

MXX appealed to the Court of Appeal, which disagreed with the High Court and ruled that the relationship between the school and PXM was “akin to employment”, taking the following factors into account:

• He was at the school to experience the work of a teacher;
• He was given responsibility for carrying out some of the PE department's work;
• He was required to comply with the school's safeguarding policy (and so the school treated him as an employee in this respect);
• His activities with pupils were closely supervised (and so he was subject to the school's control); and
• Pupils were told to treat him as a member of staff.

As the relationship was “akin to employment”, the school could potentially be liable for the sexual assault by PXM. However, the Court of Appeal agreed with the High Court that the close connection test was not satisfied on the facts of this case, due to the limited nature of PXM’s role while undertaking the work experience placement. In particular, he had no pastoral or caring responsibilities for pupils, his access to MXX at school was limited as he was closely supervised at all times, he held no position of authority over the pupils and it was not until after the placement ended that any communication took place on Facebook, and such communication was specifically prohibited by the school.

What does this mean for schools?

The relationship between a school and a student undertaking work experience can be “akin to employment”, meaning a school can potentially be held liable for a work experience student’s wrongful acts. However, schools will only be liable if the “close connection” test is also met. In this case, the sexual assault was far removed from anything the student was authorised to do while undertaking the placement, and so came nowhere near to satisfying the “close connection test”.

MXX v A Secondary School

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