Work experience, safeguarding and vicarious liability-case law update
Schools will already be aware of the importance of compliance with appropriate safeguarding procedures and practices and the potential liability it, the school, can face as a consequence of breaches by its employees.
The recent case of MXX v A Secondary School serves not only as a useful reminder of those obligations but also the risks associated with short-term work experience placements.
Proceedings were brought by a pupil, (MXX), against her school seeking damages of £27,500 for personal injury arising from a sexual assault. The assault had been committed by a teaching student (PXM) who had undertaken a one-week voluntary work experience placement at the school. At the time of the assault MXX was 13 years old. PXM was 18 years old and a former pupil of the school.
The sexual assault did not take place until approximately 3 months after the work placement had ended. PXM had some limited interaction with MXX during the course of the placement but it was not until a few days after it had ended and he became “friends” with her via Facebook that their interaction increased, culminating in the assault.
MXX argued that the School was vicariously liable for PXM’s conduct.
In response, the school pointed to the fact that prior to him commencing his work experience, PXM attended an induction meeting at which he was told he would be supervised by a member of staff at all times. He was taken through the school’s policy documents including its working practices for the protection of children, (which included a prohibition on engaging with pupils via social media), and was required to sign a Staff Declaration confirming that he had read and understood the guidance. He was referred to the Staff Code of Conduct and was supervised throughout his placement, which was unpaid. His duties were also described by the school as primarily, “shadowing and observing”.
The Court of Appeal held that there were powerful pointers towards a conclusion that PXM began grooming the victim during his work experience. They also held that some of the mental elements of intentional infliction of injury were made out during his placement and did not occur exclusively after the work experience had ended. In reaching that conclusion they took account of the content of the first of PXM’s Facebook messages which demonstrated that he was aware, during the placement, that MXX had a crush on him and that he had tried to act upon it by seeking to spend more time with her whilst he was in school.
The Court of Appeal then applied the following two-stage test to determine whether the school was vicariously liable;
1-whether or not the relationship between the school and PXM was one of employment or “akin to employment”; and
2-whether the wrongful conduct was so closely connected with the authorised actions of PXM that it could fairly and properly be regarded as committed by PXM while acting in the course of his employment or quasi employment.
It held that the first stage was made out on the basis that;
However, the claim was dismissed on that basis that the second stage was not made out. In reaching that conclusion the Court of Appeal held that;
What assisted the school in this instance was that it could demonstrate it had provided close oversight of PXM at all times during the work placement, that he had been provided with safeguarding training, that he did not have any pastoral responsibility, that he had limited opportunity, (beyond making initial contact), to groom his victim and that the assault occurred some months after the placement had ended.
The important takeaways for schools are as follows:
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