Can an employer be liable for pranks in the workplace?
The Court of Appeal for England and Wales has decided that an employer, in the case of Chell v Tarmac Cement and Lime Ltd cannot be held vicariously liable when an employee’s practical joke in the workplace causes an injury to another person. The Court of Appeal concluded that there was not a sufficient connection between the employee’s employment and the act which caused the injury. It decided that it would be unfair, unjust, and not reasonable to hold the employer liable for such an act conducted by the employee.
Tinnitus
The facts of the case are that Mr Chell was employed by Rotec Engineering and in 2014. He was working at a site managed by Tarmac. There was tension at the site between the employees of both companies. Mr Chell was subject to a prank by a Tarmac employee who struck pellet targets with a hammer. This act was conducted close to Mr Chell’s ear, and the ensuing detonation caused him an injury to his ear resulting in tinnitus and permanent hearing loss.
Mr Chells solicitors sued Tarmac and argued the employer was liable for their employee’s actions. The claim was unsuccessful in the County Court and then again on appeal. The solicitors then decided to take the case to the Court of Appeal.
The Court of Appeal followed the decision of the Supreme Court in Morrisons v Various Claimants which considered an employer’s vicarious liability. The Court of Appeal said the right approach was to consider if the employee was acting in the course of employment when he or she performed the act in question. Was the act complained of, closely related to acts the employee was authorised to do in the course of their employment?
Violence
Several reasons led the Court of Appeal to decide that the act of the Tarmac employee was not sufficiently closely to be related to his employment to hold Tarmac vicariously liable for this act against Mr Chell. The Tarmac employee had himself bought the pellet targets onto the site. They had not been provided to him by Tarmac and were not used to undertake his duties. Mr Chell was not supervised by the Tarmac employee and was neither working with him on the day the act was committed. The tension between the two groups of employees did not include any risk of violence. The risk was not inherent in the business and therefore did not give a close connection to the employer. The Tarmac employees conduct was not authorised by Tarmac and the employee chose to conduct himself in this manner. The pellets were not standard work equipment supplied by Tarmac.
The Court of Appeal also assessed if Tarmac had failed in its duty to reasonably foreseeable a risk of injury and if they also had failed to prevent such a foreseeable risk of injury. Mr Chell’s solicitor argued the malicious feelings between the two sets of employees made it foreseeable that an injury could be caused by means of a prank or due to malicious intention.
This argument was rejected by the Court of Appeal as there was no indication that the tension between the two set of employees could result in any violence hence the risk was unforeseeable. Tarmac was not expected to specifically speak to the employees about workplace pranks and horseplay in the workplace. A general warning not to misuse company equipment was deemed sufficient.
The learnings from this case highlights the need for the employer to communicate to their employees the parameters of acceptable behaviour in the workplace. This can be achieved by good staff training and clear company policies. Quest cover can help employers with both areas. Please contact Quest to discuss your company’s requirement.
This article is for guidance only if you have any legal and HR issues, please contact the Quest advice line to assist you.
