The Court of Appeal has ruled that an employer was not vicariously liable for a practical joke in the workplace.
Employee plays practical joke
Mr Chell was employed as a site fitter by Roltec Engineering Ltd and was working as a contractor at a quarry site run by Tarmac Cement and Lime Limited. Although Tarmac employed its own site fitters, it often hired extra fitters from companies such as Roltec. Tensions arose between Tarmac and Roltec site fitters and a Tarmac employee, Mr Heath, decided to play a prank on Mr Chell. Mr Heath brought explosive pellets into work with him and hit them with a hammer very close to Mr Chell’s ear. The noise caused Mr Chell to suffer a perforated eardrum, hearing loss and tinnitus.
Mr Chell brought a claim for damages against Tarmac. He alleged that Tarmac was vicariously liability for Mr Heath’s actions. He also argued that Tarmac was liability for breaching its own duty of care and for failing to provide a safe working environment.
The County Court rejected Mr Chell’s claims. His appeal to the High Court failed and he then appealed to the Court of Appeal.
Was the employer vicariously liable?
The Court of Appeal confirmed that the correct approach when considering whether an employee is vicariously liable for their employee’s actions is to decide whether the employee was acting in the course of their employment. To establish this, there must be a sufficiently close connection between the act which caused the injury and the perpetrator’s work to make it fair, just and reasonable to impose vicarious liability on the employer.
The Court of Appeal noted that:
- The explosive pellets which caused the injury were not Tarmac equipment and Mr Heath did not use them in his work
- Mr Heath was not responsible for supervising Mr Chell and they were both working on separate tasks at the time of the incident
- The risk of injury was not inherent in the business. The business simply provided the background and context for the risk and created the ground for it. That is not enough on its own to create the necessary close connection.
It could not be said that Tarmac authorised Mr Heath’s actions, nor that his actions were an unlawful mode of doing something authorised by Tarmac. The wrongful acts were not therefore done in the course of employment and Tarmac was not vicariously liable.
Had the employer breached its duty of care?
On the question of whether Tarmac had breached its duty of care, the Court of Appeal ruled that the risk of injury was not foreseeable. Although horseplay, ill-discipline and malice can provide the conditions for a foreseeable risk, this was not made out on the facts of this case. The reported tensions did not suggest that violence was likely, and there was no indication that Mr Heath might behave in the way he did.
The Court of Appeal agreed that even if foreseeable risk could be established, the only risk in this case was from horseplay. The fact that heavy and dangerous tools were available did not of itself create a reasonably foreseeable risk of injury due to the tools being misused. In addition, the site rules stated that “no one shall intentionally or recklessly misuse any equipment”. The Court of Appeal considered it would be unreasonable for the employer to have in place a system to ensure that its employees did not engage in horseplay. Therefore, even if a duty of care arose there had been no breach of that duty on the facts of this case.
What does this mean for employers?
Employers will only be liable for their employees’ actions if those actions are closely associated with acts the employee is authorised to do. A distinction is drawn between cases where the employee is engaged (however misguidedly) in furthering their employer’s business, and cases where the employee is engaged solely in pursuing their own interests (sometimes referred to as being ‘on a frolic of their own’). Each case will turn on its own facts but in most cases it seems unlikely that an employee who is playing a practical joke will be engaged in furthering their employer’s interests.
Employers must take reasonable steps to ensure the safety of their staff but their duty of care only extends to foreseeable risks The risk of horseplay and practical jokes is not something which an employer is required to take into account when assessing risk and employers are not expected to devise and implement a policies or site rules dealing with these.
This article was first published on January 27, 2022 by Jonny Robinson, Paralegal at our UK member firm Doyle Clayton.
