Vicarious Liability

Background

Employers might find it strange that they could be liable for the acts of an employee which were well outside the terms of a job description, for example, where a third party suffers injury or harm as a result of an assault. This is known as vicarious liability and it has been looked at again in a recent Court of Appeal (CA) decision.

In MXX v A Secondary School the Court held that a secondary school was not vicariously liable for the act of a sexual assault committed against a 13-year-old pupil at the school by a student training to be a PE Teacher who was on a one-week Work Experience Placement (WEP).

PXM was an 18-year-old college student who wanted to qualify, as part of this process he undertook a WEP with the school during February 2014. PXM was expected to provide some help with PE lessons and was subject to the school’s induction process. During the induction he was told that he would be supervised by a member of staff at all times and taken through the school’s policy and procedure documents, including those relating to Safe Working Practices for the Protection of Children. He signed a declaration to the effect that he understood these.

During the WEP there were two occasions when PXM interacted with MXX the pupil, the first being when he suggested that they attend an after-school badminton club and the second at the club session itself.

Any social media contact between the two took place once PXM had left. In August of 2014 PXM committed the assaults of assault and battery and sexual activity against MXX. He was arrested and pleaded guilty. MXX subsequently brought proceedings against the school seeking damages for personal injury as a result of the sexual assault and arguing that the school was vicariously liable for PXM’s conduct.

Decision

The High Court looked at the claim and two significant elements relating to the legal position. It reasoned that PXM performed minor and ancillary tasks at the school and the relationship was not one of employment or akin to employment.

It also held that the wrongdoing of PXM occurred a number of weeks after his relationship with the school had ended and that PXM was closely supervised whilst at the school and had no private access to MXX nor any opportunity for the same. He had no caring or pastoral responsibility. The use of Facebook had nothing to do with the activities of the school and it was forbidden by the school’s policy on social media. The Facebook contact occurred once the WEP had terminated.

Court of Appeal

The CA reversed the first finding of the High Court. There was evidence that PXM’s actions during the WEP were effectively the start of the grooming process. It also found that the relationship was akin to employment in that he agreed to adhere to the schools’ policies and procedures, his time was regulated and he was supervised. There was no evidence to support an assertion that he was carrying on business on his own account.

However, the CA held that the close connection between them was not made out. It agreed with the view of the High Court as to the limited nature of PXM’s role at the school with no caring or pastoral responsibility for pupils, which is a factor which could carry considerable weight in previous cases.

PXM’s access to MXX was limited and he was always closely supervised. He had no position of authority over pupils at the school and the communication on social media took place once the WEP had terminated. The grooming which led to the sexual offending was not inextricably woven with the work PXM carried out during his week at the school.

Takeaway

Businesses should take all appropriate steps to ensure these situations do not arise, or if they do then to ensure that the impact on victims and the business is mitigated. The risk for the business can be mitigated by ensuring that those who are recruited at whatever level are taken through all policies and procedures and are given training and that they acknowledge that this has taken place and that they have agreed to comply. They should be appropriately supervised.

It is important that policies are kept up to date and that the culture of an organisation is such that there is zero tolerance of any form of harassment. The result of this case could have been different for the school if it had not paid the attention it did to induction, supervision and the extent of the role to be undertaken by PXM.

Insurances should be checked regularly for the appropriate cover.