Vicarious liability and work experience: lessons for employers

Work experience can be invaluable for both organisations and participants. For organisations, it provides an opportunity to plan future talent pipelines and provide management experience for staff through supervision and mentoring. Meanwhile, participants can gain an understanding of the workplace, develop skills, explore different sectors and expand their industry networks.

However, organisations should be mindful of the employment law issues associated with work experience placements, as highlighted in the recent Court of Appeal decision of MXX v A Secondary School which found that a work experience student was “akin” to an employee and, in certain circumstances, could mean that employers can be vicariously liable for the actions of its work experience participants.

You can read more about vicarious liability in our blog from earlier this year.  

This blog provides some practical tips for employers to navigate the risks of vicarious liability surrounding work experience placements to and help them run their placements effectively.

MXX v A Secondary School

An 18 year old former pupil of a school, PXM, completed a one-week work experience placement at the school after he left. The Claimant, MXX, was a 13 year old pupil at the school and, during PXM’s work experience placement, he met MXX. Following the work experience placement, they exchanged various messages on social media, which were found to have amounted to grooming, and six months later he sexually assaulted MXX. PXM was convicted of multiple offences against MXX.

MXX subsequently issued a civil claim in the High Court against the school and argued that the school was vicariously liable for the assault. The High Court found that the school was not vicariously liable for PXM’s actions, a decision which was appealed to the Court of Appeal.

Judgment of the Court of Appeal

On the facts, the Court of Appeal upheld the High Court’s decision, finding as follows in respect of the two stage test for vicarious liability:

1. Stage 1 test: relationship akin to employment: Crucially, the Court of Appeal found that the relationship between PXM and the school during the work experience placement was consistent with PXM being an employee of the school because, amongst other factors:

• The school required him to adhere to its safeguarding policy,
• His activities with pupils were closely supervised,
• Pupils were required to treat him as a member of staff.

2. Stage 2 test: close connection to authorised acts: The case did not meet this test on the facts. The Court of Appeal held that the grooming and sexual assaults were not closely connected with the work experience responsibilities and were committed well after the placement ended.

It is important to note, however, that cases for vicarious liability are highly fact sensitive. Had the facts been slightly different in this case, it is possible to see a scenario where the Claimant may have been successful.

Lessons for employers

This decision is important in highlighting that, depending on the facts, work experience placements are capable of giving rise to vicarious liability for the organisation offering it, even when the placement is short in duration and duties limited.

In light of this decision, employers should be cautious to train and supervise work experience participants in the same way that they would for employees and should be aware that they could be treated as responsible and vicariously liable for a work experience participants’ actions.

It is therefore worth employers taking steps to reduce the risk of vicarious liability arising during a work experience scheme. Here are some practical tips to avoid being caught out:

• Disclosure and barring service (DBS) checks: The case highlights, in particular, the potential risks of work experience placements that involve working with children. Organisations should consider whether it is appropriate for both the supervising staff, as well as any work placement participants, to have a DBS check prior to starting the placement. The specific circumstances of the placement should be considered when deciding this, and the Gov.UK DBS Eligibility Tool is a useful starting point.
• Training: Although organisations are often hesitant to devote too much resource to training work experience participants, this can be really important to ensure that values are aligned. This can include training, for example, on diversity, inclusion and maintaining a respectful workplace and on the importance of confidentiality (on which see below).
• Confidentiality: The nature, length and arrangements for work experience vary greatly and organisations should be mindful of the information which the participant will have access to during the placement. This is particularly important in sectors where the participant may encounter highly sensitive information, such as in a school or a professional service firm. In order to protect confidentiality, organisations should:
   
  • Limit participants’ access to systems holding the confidential information to what is necessary for the tasks they are carrying out, and maintain close supervision of participants,
  • Include training on the importance of confidentiality as part of any induction for the participant. This should include reference to any workplace policies on IT and social media use, and
  • Consider asking work experience participants to sign confidentiality agreements, while bearing in mind that only individuals aged 18 years or older will be able to consent to a confidentiality agreement. If the participant is under 18, barriers to information will be especially important.

There are additional factors employers ought to be aware of when offering work experience placements which are not covered in this blog, such as status and pay. For more information, please see: Work experience and internships - what employers need to know.

With many thanks to trainee Toby Stacey for their help in writing this blog.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, December 2023