360: Are employers liable for injuries caused by employee’s practical joke?
Practical jokes amongst staff are commonplace in many jobs, but employers need to be aware that they can be liable when these jokes go too far.
In Chell v Tarmac Cement and Lime Ltd, the Court of Appeal has upheld a County Court decision that an employer was not vicariously liable for serious injuries suffered by a contractor as a result of an employee’s practical joke.
Mr Chell was a sub-contractor working at a quarry operated by Tarmac. Both contractors and employees worked at the site, and there were underlying tensions between the two groups. Mr Heath, an employee of Tarmac, put two pellet targets on a bench as Mr Chell bent down to pick up a length of cut steel and hit them with a hammer, causing a loud explosion close to Mr Chell’s right ear. As a result, Mr Chell suffered a perforated eardrum, hearing loss and tinnitus. Mr Heath was dismissed.
Mr Chell brought County Court proceedings alleging that Tarmac was vicariously liable for the injuries caused by Mr Heath’s actions. Tarmac argued that it had no responsibility for the incident since Mr Heath’s actions amounted to horseplay and had no connection with his work duties.
The County Court and the High Court dismissed Mr Chell’s claims. The Court of Appeal has now also ruled that Tarmac was not vicariously liable for Mr Heath’s actions. His practical joke could in no way be seen as authorised by Tarmac or part of the ordinary course of his employment, particularly as it involved the use of explosive pellets not used in his work which he had brought from home. The Court of Appeal concluded that there was not a sufficiently close connection between Mr Heath’s practical joke and his work activities to make it fair, just and reasonable to impose vicarious liability on Tarmac. It was also relevant that there was no evidence of an abuse of power as Mr Heath had no supervisory role in relation to Mr Chell, and while there had been tensions between contractors and employees, there had been no indication of a risk of physical violence.
The Court of Appeal noted that it would be unreasonable and unrealistic to expect employers to be able to prevent horseplay, ill-discipline or malice. This decision should therefore reassure employers that they will not be vicariously liable for horseplay and practical jokes. However, this will depend on all relevant facts and circumstances, and on whether the harmful act can be said to be connected with activities authorised by the employer. Robust policies and training will help discourage potentially harmful jokes or banter which could be perceived as bullying or discrimination. It is also advisable to include a clause in contracts of employment stating that employees must not commit unlawful acts or engage in inappropriate behaviour of any kind.