Dawn Robertson

Employers are, generally speaking, legally responsible for the wrongful, whether negligent or deliberate, actions of their employees when they are acting in the course of their employment. This is the concept of “vicarious liability” and is a key concept in the Courts north and south of the border.

The blurring of the edges between the employed and the self-employed, coupled with the nuanced differences between those classed as “employees” on the one hand and “workers” on the other, means that it is increasingly difficult to know where to draw the line in terms of employer liability for the “acts and omissions” of those employed or engaged to undertake services.

With all that in mind, the case noted below will bring some comfort to employers who regularly allow work placement students in their workplace to gain much needed employment experience.

The recent English Court of Appeal decision in MXX v A Secondary School considers issues of vicarious liability and provides further clarification on how the courts should approach these complex issues. While this is an English court decision, it will carry a degree of weight in a Scottish court as well.

The decision considered the “two-stage test” which is required to make an employer liable vicariously for the acts of an employee or other person.

For vicarious liability to be established, there must firstly be a relationship of employment, or a relationship which is akin to employment between the wrongdoer and the employer, and, secondly, a close connection between the wrong committed and the individual’s role and duties.

Background

In late February 2014, an 18-year-old work experience student (P) undertook a week-long placement at his former high school. P was currently at college, with the intention of qualifying as a PE teacher. Subsequent to the work experience placement, P committed a sexual assault of a pupil, following a period of what was described as “grooming”.

As part of the work experience placement, P was not involved in any class contact with the pupil, but interaction between the two arose at a lunch time when P invited the claimant to attend a badminton club in the school, which she did. The High Court found that this contact was above board and did not amount to grooming, but the Court of Appeal disagreed and found that the grooming commenced during the placement.

Following the completion of P’s work experience, Facebook communication began between P and the claimant in March 2014 and subsequently, a sexual offence was committed by P.

The pupil raised a civil claim, seeking damages from the school, alleging they were vicariously liable for the wrongful acts of P, claiming compensation for psychiatric damages and other losses.

The High Court dismissed the claim on grounds that neither part of the “two stage test” was met – a work experience student on a placement is not in a role akin to employment, and there was not a sufficiently close connection between the wrongful acts and the tasks that P had been supposed to carry out.

Court of Appeal

The pupil appealed to the Court of Appeal, arguing that the two-stage test for vicarious liability was met.

The Court of Appeal disagreed with the High Court and concluded that the first stage was satisfied – the relationship between the school and a work experience student was akin to employment. P provided PE teaching to pupils, he was under the school’s close supervision and control, he was to be addressed in the same way as a teacher, and he had to sign up to the school’s safeguarding policy.

For stage 2, however, the Court of Appeal agreed that there was insufficient connection between the wrongful acts and the activities that P had been supposed to be carrying out. P had been given no pastoral responsibility for pupils, he was supposed to be supervised at all times, he was not in a position of authority over pupils, and the school had expressly prohibited him contacting pupils on Facebook.

As a result, even if the grooming commenced during the placement, the school was not vicariously responsible for P’s actions, and the appeal was rejected.

Comments

This judgement provides further clarification in this complex area of law. Confirmation that a week-long work experience student may be deemed to have a relationship akin to employment is a stark reminder for all employers, not just in the education sector, of the prospect of vicarious liability arising, and employers may wish to ensure that their employers’ liability insurance will cover any claims relating to the acts of such students.

The ‘close connection’ aspect of the decision is more reassuring for employers. The Court of Appeal found that even if the grooming originated in the school, it did not begin to satisfy the test of close connection.

This high threshold seems to be consistent in recent case law. For a wrongful act to satisfy the test, it must be so closely connected with the acts the wrongdoer was authorised to perform, that it would be fair to conclude that the wrongful acts were done in the course of employment (or other relationship).

Dawn Robertson is a partner at BTO LLP