Employer found not liable for employee’s practical joke

Recent case considered whether an employer could have prevented a practical joke that caused injury.

We have published a number of articles looking at the issue of an employer’s vicarious liability for the acts of its employees which lead to loss, damage or injury of others both inside and outside of the workplace.

See Employer vicariously liable for managing director’s attack at post-Christmas party drinks, Was an employer negligent or vicariously liable for injury sustained during an office party at work premises?, Employer not vicariously liable for the vengeful act of an employee, and Was an employer vicariously liable for workplace harassment via social media?.

Employers can be held vicariously liable for the wrongful act of an employee where there is a sufficiently close connection between what the employee is employed to do and the wrongful act.  

It remains difficult for employers to know in exactly what circumstances they are at risk of being found liable for the acts of their employees, as each case will be decided on the specific circumstances. The key question will be whether the wrongful act was part of the “field of activities” carried out by the employee as part of their role. This will often depend on such nuances as where and when the incident took place, whether the employee was representing or advancing the purposes of the employer at the time, and what was said at the time of the incident.

A recent case in the High Court has considered whether an employer was vicariously liable for a practical joke which led to a permanent injury.

Case details: Chell v Tarmac Cement and Lime Limited [2020]

Mr Chell was employed as a site fitter and his employer contracted his services out to Tarmac to work on one of their sites. Tarmac also engaged its own fitters to work alongside Mr Chell, one of whom was Mr Heath.

On site, tensions arose between the two sets of fitters, with the Tarmac fitters appearing to fear that their jobs were in jeopardy and that they would be replaced by contractors such as Mr Chell. Mr Chell raised the issue with the Tarmac site supervisor about it, but no further action was taken.

About a month later Mr Chell was working on site when he bent down to pick something up. Mr Heath put explosive pellets on a bench close to Mr Chell’s ear and then hit them with a hammer causing a loud explosion. This resulted in Mr Chell suffering a perforated ear drum, noise-induced hearing loss and tinnitus. Tarmac dismissed Mr Heath.

Mr Chell later brought proceedings in the county court alleging negligence directly against Tarmac and that Tarmac was vicariously liable for the actions of Mr Heath.

At first instance, the county court dismissed the direct negligence claim on the basis that there was no reasonably foreseeable risk of Mr Chell’s injury, that Tarmac’s health and safety procedures were adequate, and that increased supervision to prevent horseplay or ill-discipline was not a reasonable step for the employer to take. The county court also found that Tarmac was not vicariously liable for Mr Chell’s injury because hitting the pellet targets was not within the field of activities of Mr Heath’s employment and so there was not sufficient connection between this action and what Mr Heath was employed to do.

Mr Chell appealed to the High Court.

Appeal

The High Court dismissed the appeal, agreeing that Tarmac was not vicariously liable for its employee’s wrongful act. This was on the basis that the action of striking the pellets was not within the employee’s field of activities because:

• the pellets that were struck had been brought to the site and were not work equipment;
• it was not part of Mr Heath’s work to use or hit pellets;
• what Mr Heath did was unconnected to any instruction given to him in connection with his work;
• Mr Heath had no supervisory role regarding Mr Chell and at the time of the incident should have been working elsewhere on site;
• hitting the pellets with the hammer did not advance the purposes of Tarmac; and
• in all circumstances, work merely provided an opportunity for Mr Heath to carry out the prank he played, rather than the prank in any sense being in the field of activities that Tarmac had assigned to him.

The High Court agreed that the judge was entitled to find that the uncomfortable atmosphere reported to the site supervisor was not serious enough to suggest a risk of physical confrontation which might have suggested a sufficiently close connection between the wrongful act and Mr Heath’s employment.    

Comment

This case gives some useful guidance to employers on the circumstances in which they might be found directly liable or vicariously liable for injury caused by a practical joke at work.

In this case, Tarmac was not liable because the injury was not foreseeable and Tarmac could not reasonably have been expected to put measures in place to prevent such a practical joke taking place or causing injury. The court commented that a risk assessment would not have prevented the incident. 

Interestingly, however, the county court judge commented that he might have been more likely to find Tarmac vicariously liable if the tensions created between the fitters had been so serious as to suggest the possibility of violence or physical confrontation: in that case, there might have been sufficiently close connection between the employment and the wrongful act.

Employers who are aware of serious issues between staff which could foreseeably lead to confrontation, or who are aware of a workplace culture of practical jokes could find themselves liable for injuries caused by their employees and would be well advised to address these issues proactively.