When is an employer legally responsible for sexual assaults (and other types of criminal activity or negligence) committed by work placement students?

Employers are only responsible for the negligent or wrongful actions of others if there is a relationship between the parties and it is fair to make one of them pay for the fault of the other. There must also be a sufficient connection between that relationship and the wrongdoing of the other person.

In MXX v A Secondary School the Court of Appeal had to decide if a school was vicariously liable for the injury to one of its pupils who was sexually assaulted by a work experience student who met the pupil during a week's placement.  

Facts

The school agreed to allow one of its former students (P) , who wanted to be a PE teacher, to undertake a week's work experience. He was 18 at that time. 

He attended a short induction meeting, was asked to sign various policies and signed a declaration that he had read and understood these. This included a safeguarding policy which prohibited those working and volunteering at school from exchanging social media messages with pupils. He shadowed a qualified teacher and performed various tasks under their direction.

During his work experience he spoke to a thirteen-year-old girl (MXX) he met at lunchtime when he was unsupervised and suggested that she join the badminton club taking place after school that day. She attended and he showed her and others how to play. The club was run by a teacher who was present at all times.

The placement came to an end in February and within a week the two became Facebook friends and began messaging each other. In July he sent the pupil sexually explicit images. They met up twice and he sexually assaulted her on both occasions. 

One of MXX's friends reported her concerns about their relationship and the police got involved. P was subsequently convicted of a number of offences.  

Some years later MXX brought proceedings against the school and asked the court to award her compensation of £27,500 for the personal injuries she had suffered. To succeed she had to establish that the school was vicariously liable for P's actions. 

Law 

Courts use two separate tests to decide if an organisation is vicariously liable for the actions of someone else. The first examines the wrongdoer's relationship with that organisation (or person being sued). There must be an employment relationship between the two or one that's akin to an employment relationship. 

If a claimant clears that hurdle the court will examine the second part of the test, which looks at whether the wrongdoer's actions can be fairly and properly regarded as done in the ordinary course of the organisation's business or their employment. 

First decision

The High Court accepted that P had groomed an isolated and vulnerable young girl for his own sexual gratification, but it said that this hadn't occurred until after the placement ended, and that the relationship between the school and the work experience student was not akin to employment. The school had simply done him a favour and had treated his request for work experience in that context. 

It also that that there wasn't a sufficiently close connection between P, the school, and the sexual abuse and it couldn't therefore be regarding as having been done while acting in the course of employment or the school's business. It said that P didn't have any real authority: his role was extremely limited, he had been closely supervised, had no private access to MXX at school and had not undertaken a pastoral or teaching role. 

MXX appealed to the Court of Appeal.

Decision of the Court of Appeal

The Court said that the original Judge had not considered all of the relevant evidence which suggested that P may have started grooming MXX during his placement. It found that P had attempted to manipulate his schedule and suggest to MXX that she attend the badminton session in order to spend time her, and that he knew she had a crush on him. 

The Court then considered the two-stage test. It overturned the High Court's decision in relation to the first part of the test, finding that P's relationship with the school was akin to an employment one. He wasn't just shadowing or observing other teachers: he carried out some work, had some responsibility which assisted the school and was required to read and follow the school's procedures and guidance. 

However, it agreed with the High Court in respect of the second part of the test. There wasn't a close connection between P's work and what he did to MXX. He didn't have a caring or pastoral role, and even though he was addressed as if he was a member of staff, he wasn't in a position of authority over the pupils. 

He also didn't communicate with MXX via Facebook in breach of the school's policy until after he had left. 

The Court concluded that 'the grooming which led to the sexual offending was not inextricably woven [into P's work] during his week at the school such that it would be fair and just to hold the [school] vicariously liable for the acts of P.'

Does that mean that schools (and other employers) aren't liable for the actions of work placement students?

Not necessarily - it will depend on the facts.

However, here are some pointers to consider:

It's probably better to assume that if you allow someone onto your premises who will be doing some work (even under supervision) that benefits you in some way, they may be able to establish that their relationship with you is akin to employment. However to reduce the risk that you will be held vicariously liable for their negligence or criminal behaviour:  

1. Limit what they do. The purpose of work experience is to give someone an idea of what to expect once they start work and to help them to or rule in (or out) potential career options. 
2. Make sure that someone with authority provides a brief induction and explains any key policies or guidelines they must follow and why these are important. Although that is a factor which can point towards an employment relationship, it's important to do this to minimise risk.
3. Make sure they are closely supervised, particularly if they are near machinery, animals or anything else that could put them in danger or give them the opportunity to put others in danger. Be particularly vigilant if they come into contact with children or vulnerable adults.
4. If the work student is under 18, make sure that they get adequate rest breaks and daily rest in line with the rules on young workers in the Working Time Regulations. 
5. Work experience placements should be time limited (a week or two at most). 

Our readers may be interested to know that, despite successfully defending the claim, the school in question doesn't offer work experience to students other than those training to become teachers. 

It's also worth remembering that if a work student is deemed to be your employee, other employment rights may flow from this. For example, they may have the right to receive paid holiday and be paid in line with the appropriate National Minimum Wage rates, unless they're a student on a placement during a higher education course or are work shadowing.

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