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Vicarious Liability Can Extend Beyond Those Formally On Your Payroll

An important Court of Appeal ruling provided a clear warning to employers that their indirect – or vicarious – responsibility for the unlawful acts of those who work for them may not be confined to those who are formally on their payroll.

The case concerned an 18-year-old former pupil at a secondary school who returned to his alma mater for a week-long work experience placement. Whilst there, he met a 13-year-old pupil with whom he began to communicate on social media shortly after his placement ended. He started to abuse her a few months later and subsequently pleaded guilty to sexual activity with a child and other sexual offences.

His victim subsequently launched proceedings against the school, seeking £27,500 in compensation for psychiatric injury. Following a trial, however, a judge rejected her claim on the basis that she had failed to establish that the school bore vicarious responsibility for the abuser's wrongdoing.

The abuser was not the school's employee and the judge noted that affording him work experience was an altruistic gesture. The limited activities that he performed were required to be closely supervised by qualified staff and his presence was a burden to the school, rather than a benefit.

Ruling on the victim's challenge to that outcome, the Court found that the abuser's position vis-à-vis the school was nevertheless akin to an employment relationship. He was required to read and accept the school's procedures and guidance; he assisted with the school's business and it regulated his time, supervised him and directed and controlled what he did. Pupils were told to treat him with the same respect due to any member of staff. There were powerful pointers in the evidence that he began grooming the victim during his placement.

In dismissing the appeal, however, the Court found that the abuser's wrongdoing was not so closely connected to his relationship with the school as to give rise to vicarious liability. He was not placed in a position of authority over pupils and had no caring or pastoral responsibilities. The abuse did not begin until many weeks after his placement came to an end. Overall, it would not be fair, just or reasonable to hold the school indirectly responsible for his unlawful acts.

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