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.

The facts

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;

  • the school identified the terms on which PXM was engaged;
    • PXM was required to read and accept the school’s procedures and guidance (which apply to each member of staff),
      • the school regulated PXM’s time, supervised him, and controlled what he did;
        • pupils were told by the school to treat PXM with respect;
          • a badminton session that PXM had encouraged MXX to attend was only open to pupils and staff;
            • PXM assisted with providing PE classes and after school sports clubs to the school’s pupils. He therefore did more than simply “shadowing and observing”;
              •  there was no evidential basis to support any assertion that PXM was carrying on business on his own account. 
              • 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;

                • PXM had only a limited role at the school and had no caring or pastoral responsibility for pupils;
                  • PXM’s access to his victim was limited as he was always closely supervised;
                    • it was not until PXM left the school that any communication took place on social media (such communication being specifically prohibited by the school);
                      • the grooming which led to the sexual offending was not inextricably woven with the work that PXM carried out during his week at the school to the extent that it would be fair and just to hold the school vicariously liable. 
                      • Conclusion

                        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:

                        1. even if an individual is engaged on a work experience/unpaid basis, a relationship “akin to employment” may well be deemed to apply;
                        2. accordingly, and regardless of how any such engagement is defined by the parties, the individual should be closely supervised and have no responsibility for pastoral support, so as to minimise the risk of grooming;
                        3. a record should be retained of the individual’s written confirmation that that they have been provided with safeguarding training and that they have read and agree to comply with the school’s safeguarding policies and procedures; 
                        4. that such policies and procedures are up to date, fit for purpose and include a prohibition on engagement with pupils on social media.
                        5. that even if the placement passes off without incident, the school remains mindful of the possibility of future claims which may not be pursued until many years later. Records should therefore be retained with advice sought, if required, as to compliance with retention and disposal of records obligations. 
                        6. Author


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