281: Employer’s liability for practical jokes

Employers can be held vicariously liable for the wrongful actions of their employees if those actions are so closely connected with an employee’s duties that it would be fair and just to hold the employer responsible.  In the recent case of Chell v Tarmac Cement and Lime Ltd, the High Court has ruled that an employer was not vicariously liable for serious injuries caused to a contractor by an employee’s practical joke because that employee was acting ‘on a frolic of his own.’

Mr Chell was a site fitter employed by Roltech Engineering Ltd but contracted out to Tarmac Cement and Lime Ltd. Tarmac also employed its own site fitters, including Mr Heath, who worked alongside Roltech’s fitters. Mr Chell had complained about tensions between the two groups of fitters and had asked to be taken off site but was advised to stay for a few more weeks. He was then seriously injured when a practical joke played by Mr Heath in the workshop went wrong. Mr Heath placed pellet targets on a bench close to Mr Chell’s right ear and hit them with a hammer, causing a loud explosion. Mr Chell suffered a perforated eardrum, noise-induced hearing loss, and tinnitus. Mr Heath was dismissed from his employment.

Mr Chell brought a claim alleging that Tarmac was vicariously liable for the injuries caused by Mr Heath’s actions. Tarmac defended this allegation on the basis that Mr Heath’s ‘horseplay’ was not sufficiently connected to his employment to make it liable.

The County Court held that Tarmac was not vicariously liable because the workplace only provided an opportunity to carry out the practical joke, rather than it being part of any of the duties assigned to Mr Heath. On appeal, this decision was upheld by the High Court. The prank was not so closely connected to Mr Heath’s work that it could be said that he was acting in the ordinary course of his employment. There were several key reasons for this finding:

• the pellet targets were not work equipment and had been brought on to the site by Mr Heath;
• it was not part of Mr Heath’s work to use or hit pellet targets;
• Mr Heath’s action was unconnected to any instruction given to him in connection with his work, and at the time he was supposed to be working on another part of the site; and
• he had no supervisory role in relation to Mr Chell’s work.

Case law has established that vicarious liability is most likely to arise where the wrongful actions of an employee are connected to furthering the business of the employer. However, establishing whether there is a sufficient connection between the misconduct and the employee’s field of activities is often a difficult and contested area of law. It will be a relief to employers that they are unlikely to be held vicariously liable for injuries caused by a practical joke in the workplace. The High Court also noted in its judgment that it is expecting too much of an employer to devise and implement a policy or site rules which descend to the level of horseplay, malice or ill-discipline. This case is also consistent with the recent decision of the Supreme Court that Morrison Supermarkets was not vicariously liable for the actions of a disgruntled employee who had unlawfully published a significant amount of personal data relating to thousands of its employees.