Long Read: Horseplay at Work – Understanding Employer Liability

26th January 2022

 

Long Read by Efrat Gordon and Neha Solanki

Practical jokes in the workplace: Is an employer liable for damage caused by a joke gone wrong?

 

‘Vicarious liability’ is a principle which means that an employer may be responsible for the actions of their employees during the course of their employment. There is no requirement for an employer to have contributed to – or have any knowledge of – events which lead to the wrongdoing of its employees.

However, in the recent case of Chell v Tarmac Cement and Lime Ltd, heard in the Court of Appeal, the court decided that an employer was not directly or vicariously liable for injuries that a contractor suffered because of an employee’s practical joke.

No-one wants to be accused of being a killjoy, but there’s a difference between employees having fun and employees behaving negligently or even, in some cases, dangerously.  This case is an example of someone who thought they were just joking, but who acted dangerously with serious consequences.  The case focused on vicarious liability for the individual’s actions, which makes it of significant interest to employers.

 

The facts of the case 

The Claimant, Mr Chell, was working as a contracting fitter for Tarmac Cement and Lime Ltd (Tarmac). As a poorly judged practical joke, one of Tarmac’s employees, Mr Heath, brought two pellet targets to work and hit them with a hammer close to Mr Chell’s head. The result was an explosion which left Mr Chell with a perforated eardrum, tinnitus and hearing loss. The employee was dismissed but Mr Chell brought proceedings against Tarmac for being vicariously liable for the actions of Mr Heath.

The Court of Appeal upheld the High Court’s decision and confirmed that Tarmac could not be held vicariously liable for its employees’ actions as there was no sufficient connection between Mr Heath’s responsibilities and duties as a Tarmac employee and the practical joke.   The court held that, although the workplace had created the opportunity for the prank to have been carried out, the prank had not been carried out in the ordinary course of Mr Heath’s employment. The pellet targets were not authorised to have been brought on site, Mr Heath was not following any instructions when he hit the pellet targets with a hammer and indeed, hitting pellet targets was not one of Mr Heath’s duties at work.

Tarmac could not have reasonably expected the conduct or damage to have taken place and therefore would not have been expected to implement a health and safety policy or site rules to accommodate horseplay or practical jokes.

 

Implications of the decision

The decision will provide reassurance to employers as it confirms that employers will only be held to be vicariously liable for employees’ actions which are carried out in the ordinary course of an employee’s normal duties. However, the phrase “in the course of employment” can be widely interpreted – it may extend to work-related social functions (e.g. drinks after work) or even business trips.

 

Employer or employee liability? Example cases:

We set out below some examples of cases regarding vicarious liability to demonstrate the types of actions which might bear a risk of a finding of vicarious liability on behalf of an employee:

What happened?

Who was responsible?

Supervisor bullying, intimidating and harassing employee reporting to her

Employer: employers can be liable for breaches by employees of statutory duties towards colleagues.

MD punching junior employee during “an unscheduled drinking session after the company Christmas party”.

Employer: the MD was still acting “in the course of his employment”.

Employee used a cigarette lightener in the vicinity of another employee whose overalls had been sprinkled with a lightly flammable liquid and resulted in serious injuries. 

Individual: there was evidence that the two colleagues had been ‘mucking around’ before the incident and there was no intention to cause serious harm.

Disgruntled employee distributed confidential payroll data as part of his vendetta against his employer.

Individual: the employee was acting on a personal vendetta, not furthering the employer’s objectives.

Sexual assault of a policewoman by a fellow officer while they were both on duty.

Individual: the assailant had visited the victim as a social acquaintance and with no working connection.

 

Actions employers can take

It is clear from the above examples that vicarious liability cases are fact-specific and much depends on the circumstances of a particular case, and specifically the wrongful conduct that occurred. Therefore, employers should tread carefully and take further advice to mitigate the risk of any such claims.

We would recommend that employers:

  1. 1.   Put in place appropriate policies are in place to deter this type of behaviour; and
  2. 2.  Provide adequate training to mitigate the risk of an employer being liable for its employees behaving in such a way.

Of course, employers cannot be expected to accommodate unforeseeable risks of injury or damage arising from practical jokes. But where possible, employers are advised to take action where there are signs that ‘playful’ activities or conduct could become dangerous.

 

 

 

 

If you need any assistance with the issues raised in this article or wish to discuss what practical measures you can take to avoid findings of vicarious liability, then please do not hesitate to contact a member of our Employment team or contact our Head of Employment, James Baker at jamesbaker@leeandthompson.com or 020 3073 7600.