Background:

The claimant was a 13-year-old schoolgirl who had been sexually assaulted by a former pupil who had undertaken work experience for one week at the school. The school gave guidance for safe working practices which outlined that there was a prohibition on the exchange of social media messages. After the work experience ended, the work experience student and the claimant communicated on social media.  It was some months later the work experience student committed the acts of assault and battery against the claimant. He was charged and pleaded guilty to the counts of sexual activity with a child. The claimant argued the school was vicariously liable for the assaults and batteries.

Outcome:

At first instance, the Trial Judge outlined there had been no element of the acts completed through the work experience.  This included the ‘grooming behaviour’ where it was held that the work experience student inviting the claimant to afterschool badminton club was not grooming behaviour. Accordingly, the Judge held that there was no relationship akin to employment and that the wrongdoing occurred many weeks after the relationship between the work experience student and the respondent had ended. The claim was dismissed. The claimant appealed to the Court of Appeal.

The Court of Appeal looked at various aspects of the Trial Judge’s decision. The first was the point on grooming.  It was held that there was a failure to consider the motive of the work experience student especially with the Facebook friend request on 5th March which was some 5 days after the work experience ended. The second was the relationship between the work experience student and the school/respondent. It was held by the Court of Appeal that there was a relationship akin to employment. This was on the basis that the school was under a requirement to ensure that the safeguarding policy was made known to the work experience student. The acceptance of that policy pointed towards the relationship being akin to employment.

The third and final aspect was whether there was a close connection between the acts committed and the relationship between the work experience student and the respondent.  Despite the fact that the Court of Appeal found that grooming had commenced during the work experience it was held that due to its limited nature the facts did not satisfy the requirements of the close connection test. The grooming was not inextricably woven into the later sexual offending.  Therefore, it would not be fair to hold the school vicariously liable for the acts.

Practical Guidance for Employers:

This case demonstrates the wider ambit upon which an employer can be vicariously liable for the acts of the employees. Indeed, they need not be employees at all but can fall within the category of ‘akin to employment’ as demonstrated here with a work experience placement student.  However, there must be close connection between the employment and the acts carried out.  Whilst it was held to have started during the placement that was insufficient for the school to be liable for the later acts.  Employers ought to be aware that they could be vicariously liable for those they would not instantly think of as employees and ensure that safeguards are put in place whether that be through making that individual aware of policies or training.

The full case is here:
https://www.bailii.org/ew/cases/EWCA/Civ/2023/996.html