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Can Employers be Liable for Employees’ Practical Jokes?

Posted: 1st December 2020   In: Business Employment

Are employers liable for their employees’ practical jokes if they go badly wrong? This was the question considered by the court in Chell v Tarmac Cement and Lime Ltd [2020] EWHC 2613.

The background to the claim concerned the Claimant, Mr. Chell, one of a number of sub-contractors, and Mr. Health who was employed by the Respondent. There was some acrimony between the sub-contracted workers and those directly employed by the Respondent, with ongoing tensions between the two camps, ostensibly because there were some (incorrect) assumptions made that the subcontracted workers may pose a threat to the continued employment of the employees.  

In an incident described by the judge as a “wholly misguided practical joke”, Mr. Heath and a colleague set off explosive pellet gun targets near to the Mr. Chell’s head by hitting them with a hammer. The incident resulted in Mr. Chell suffering a perforated ear drum, hearing loss and tinnitus. Mr. Chell brought proceedings against the Respondent, claiming that they were vicariously liable for the actions of Mr. Health and were in breach of their duty of care to him.

The focus of the Claimant’s case was that the Respondent was aware of the tensions between the contracted workers and employees of Tarmac, and had been negligent in their duty to deal appropriately with those tensions to ensure a safe working environment. The court of first instance concluded that there was no direct or vicarious liability for the incident on the part of the Respondent, largely because Mr. Heath had brought the pellet gun onto the premises, using a pellet gun formed no part of his usual duties and the only part the employer effectively played in the incident was that it happened to provide the workspace in which the incident occurred.

At appeal, the judge upheld the court’s decision: an employer could and should not be held responsible for conducting risk assessments so thorough as to include “horseplay, ill-discipline and malice” on the part of errant employees. There was an insufficiently close connection between the employees carrying out the “practical joke” and their employment by the Respondent to warrant any liability.

This will come as something of a relief to employers, who may have been concerned by any case law to suggest that they were responsible (vicariously or otherwise) for policing the moral conduct of their employees acting outside of the scope of their employment. However, employers should be mindful that their duty to provide safe working environments remains and this case does not absolve them from liability for employees who do act and cause harm in the course of their employment.

Employers should also bear in mind that turning a blind eye to issues in the workplace will not absolve them of all blame.  If employees raise concerns about workplace incidents, employers should take them seriously, investigate them and take appropriate disciplinary action in order to discourage the incident from occurring again.

If you have any regarding discipline in the workplace or any other employment law issue, please contact Faith Widdowson.

Posted by: Faith Widdowson
Employment
Luton Office