Employers’ Liability

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The recent classroom attack on a pupil by a high school teacher has raised questions as to who is held responsible for the pupils’ welfare in such situations, and whether a school or local authority can be held vicariously liable for such an attack. Solicitor, David Bywater, offers some advice.

Teachers, schools and the local authorities in which they operate have two primary legal duties to their pupils: an educational duty and one under health and safety laws. A teacher is expected to show the same care towards a child as a reasonably careful parent would exercise in the same circumstances. If a teacher’s actions exceed that duty to detrimental effect, is the school or local authority liable?

The law regarding liability is that an employer is liable for the acts of their employee, even those not authorised, provided they are sufficiently related to the employment, that they might be seen as a way of getting the job done.

A leading case in the educational field is LISTER & ORS V HESLEY HALL LTD (2001) in which a school warden sexually assaulted two boys. The Court of Appeal found the school liable for the actions of the warden, saying that the determining factor was whether the teacher’s actions were so closely connected with his employment that it would be fair and just to hold the school liable. The judges found that the school owed the pupils a duty of care, and in employing this warden, they had failed in that duty.

Points that are considered by the courts when deciding liability include the role of the employee and when they were employed to fulfil that role. However, there is no clear authority on whether acts of personal spite fall within the course of employment. The fact that an act happens during school hours does not necessarily mean that it was authorised, or closely connected to those acts authorised by the school.

In assault cases, a sufficiently close connection between the assault and the job is only established if the assault is a risk inherent in the employee’s duties, or if an assault can be said to be incidental to or consequential of the employee’s role. If the job is unlikely to involve any use of force, then it is less likely that the employer will be held liable. Teachers fall into a difficult territory.

In R v MARJORIE EVANS (2000), a headmistress was convicted of assault after adopting the approved 'restraint hold' when a difficult pupil went to attack her, though the claim was quashed when it went to appeal. When giving its judgement, the court stressed that no general pronouncements were being made on how the teaching profession should deal with difficult pupils.

So who is responsible for a pupils’ welfare? The question is whether the teacher is likely to be in a position to use force from time to time, or if the outcome was graver than expected. The outcome will depend on individual schools and the circumstances of each situation, yet in most cases, as long as the school has taken steps to ensure that they employ staff who are not a threat to their pupils, they are unlikely to be found negligent.

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