Yesterday we considered peer on peer abuse; today we consider whether such abuse might result in claims for compensation. Much of the coverage of the allegations on the Everyone’s Invited website presumes that claims against education establishments arising from peer on peer abuse will be difficult to bring. That is because the claimant will have to show negligence by the relevant organisation as opposed to holding that organisation vicariously liable for an act of assault/abuse. As such in order to succeed the claimant has to prove not just abuse by another student but that the school was negligent in causing or permitting the abuse to take place.
In order to establish negligence there must be evidence that the school owed a duty of care, that duty has been breached and the claimant has suffered injury and loss as a result of the breach. The general duty of care owed by a school to its students has long been established. Schools and colleges now need to examine what steps they are taking to discharge this duty of care in the context of what is now known from the Everyone’s Invited testimonies and in particular to consider whether their core safeguarding arrangements are compliant and fully up to date, what do those policies say about peer on peer abuse, what sanctions do they provide in respect of same, what specific training, if any has been provided to staff, governors, parents and pupils. Schools and colleges also need to carefully consider whether there are appropriate and well sign posted systems in place to enable pupils to report such abuse and whether the pupils know about those systems. Consideration should be made of what has been disclosed directly or indirectly and ensure appropriate steps are taken to respond to recent allegations and disclosures.
In addition to having regard to the statutory guidance in Keeping Children Safe in Education and Working Together to Safeguard Children and the common law duty schools should also be mindful of their wider legal responsibilities, including their obligations under the Human Rights Act 1998 and the Equality Act 2010. Being subjected to sexual violence or sexual harassment may breach Article 3 HRA (the right to freedom from inhuman and degrading treatment), Article 8 HRA (the right to respect for private and family life, which includes a duty to protect individuals’ physical and psychological integrity) and Protocol 1, Article 2 HRA (the right to an effective education). Schools should also have regard to their obligations under the Equality Act to ensure that pupils are not discriminated against because of their sex or sexual orientation.
These claims could also be brought as bullying and harassment claims where the behaviour could lead to the physical and psychiatric injury to the victim and lead to educational under achievements and consequent psychiatric injury or economic loss. The Protection from Harassment Act 1997 prohibits the pursuit of a “course of conduct which amounts to harassment of another”. Employers can be vicariously liable under the PHA for acts of harassment committed by their employees in the course of their employment.
While of course peer on peer abuse does not normally arise in schools in the context of an employee/employer relationship it is important to consider that an argument may be made that schools are vicariously liable for peer on peer abuse where the alleged perpetrator may hold a role akin to employment in the school such as pupil who is a say a prefect or pupils who are mentoring, tutoring or supervising younger children.
It appears that there is in fact a whole range of possible avenues open to those who have suffered peer on peer abuse in terms of bringing a claim and while all of these claims will have to be very carefully considered on their own individual facts and circumstances, the various possibilities should be to the forefront of thinking in schools and colleges when they are considering their position vis-à-vis peer on peer abuse and the steps they need to take to best protect the children in their care, and themselves from this very modern and widespread risk.