Work experience students are often to be found in schools (and indeed in other sectors). Unpaid and often only in school for a short period, it can be hard to define their role and status. This Court of Appeal case (MXX v A Secondary School) demonstrates that the link between a school and the individual might be stronger than either party thought.

Case highlights

A school was not responsible for the actions of a work placement student, however, the relationship between them was found to be similar to that of an employee and employer. 

Vicarious liability – a reminder 

Organisations can be held responsible for the wrongful acts of their employees or agents when those acts occur within the scope of their employment.

There is a two-stage test (both need to be satisfied for a claim to succeed):

• Stage one: the relationship - was the relationship similar to that of an employer and employee? and;
• Stage two: close connection - was the wrongful act committed while acting in the course of employment?

Case details 

PXM completed a work experience placement at the school for one week. PXM took part in PE activities. Students were told to treat him as a member of staff, but he had no teaching or pastoral responsibilities. During the placement, PXM met MXX, a student at the school. 

After the placement ended, PXM committed sexual assaults against MXX. 

MXX sued the school, arguing they were vicariously liable. 

Decision

The Court of Appeal found that the school was not vicariously liable, however, considered that the first part of the two-stage test was upheld.

• Stage one: the relationship between the school and the student was similar to employment, reasons included: the school identified the terms on which PXM was at the school, regulated his time, supervised him, directed and controlled what he did, required him to read, accept and comply with their procedures and guidance, etc.
• Stage two: PXM's role during placement did not establish a sufficiently close connection between the placement and the wrongful conduct as PXM’s actions were not inherently linked to his duties at the school.

Learning points 

• Employee and employer relationships, or similar, are often determined by factors such as control, personal service, and mutuality of obligation – not every work placement scheme will satisfy the employee/employer relationship as in this case.  Schools who wish to avoid this arising should ensure that placement schemes are limited to shadowing and observing.  Whilst this may satisfy this legal technicality, the problem with such a limitation is that the experience might not be as useful to the work experience student given the limits on their input. That is something that needs to be weighed up by schools.
  • Putting things in place to satisfy safeguarding obligations or regulatory requirements is necessary but going too far can blur lines.
  • Having in place agreements and clear policies on work placements (and volunteer placements etc) can, when done right, clarify the working relationship and achieve the aims of the balancing act above.  

These vicarious liability decisions whilst following a legal principle will inevitably rest on individual circumstances.  If you would like us to look at your work placement documentation and advise on its effectiveness or would like us to draft such documentation, please contact me.