The Court of Appeal has ruled that the employer is not liable for a practical joke carried out by one employee on another using non-work equipment, and that had nothing to do with his work – even though it was during work time.
The practical joke, or ‘act’, was found not to be sufficiently close to what the employee was authorised to do by the employer for it to be fair to make the employer liable for that act.
In Chell v Tarmac Cement and Lime Limited an employee had played a misguided practical joke on Mr Chell by striking a pellet gun target with a hammer close to his ear, causing him hearing loss. Chell alleged that Tarmac was liable directly and vicariously for the act of its employee.
The claim had been dismissed at first instance, as well as on appeal to the High Court. The Court of Appeal heard the second appeal on the grounds of vicarious and direct liability. Chell argued that the act of the employee causing him injury was sufficiently closely connected to his work for the employer that it was fair, just, and reasonable for the employer to be held liable. In addition, Chell argued that the employer had breached its duty to carry out an adequate risk assessment and implement effective measures against the risk of injury from horseplay, ill-discipline, or malice.
Direct liability decision
The Court of Appeal held that it is unrealistic to expect an employer to effectively implement a risk assessment process for general horseplay, ill-discipline, or malice.
If an employer was aware of a foreseeable risk of injury to employees from a specific source of horseplay, ill-discipline, or malice, then the duty to implement the risk assessment process for that specific source may be triggered. As that was not the case here, then standard site rules should be sufficient.
Vicarious liability decision
The Court of Appeal found that Tarmac could not be held vicariously liable for the employee striking the pellet gun target with a hammer because it:
- was in no way an authorised act as part of his work;
- was not an unlawful way of carrying out an authorised act; and
- in no way advanced the purpose of his employer.
The Court of Appeal found the following points as relevant in finding the absence of this sufficient connection between the act and what the employee was authorised to do:
- The real cause of the injury, the pellet gun target, was not work equipment.
- It was no part of the employee’s work to use pellet gun targets.
- There was no abuse of power of any supervisory or management capacity.
- There was no indication of any threat from any friction between the employees.
- The risk created was not inherent to the business, the opportunity for the wrongful act was not in itself enough.
These points illustrate the difference between this claim and other similar cases where the employer was found to be liable for the acts of the employee, where the only equipment involved was work equipment, the act was part of the employee’s usual field of authorised activities and the motivation behind the incident leading to the injury was work related.
Employers will be heartened by this decision. Employers will not have to carry out largely speculative risk assessments trying to anticipate the possibly infinite ways their employees could engage in horseplay, ill-discipline, or malicious activity during any work task. While, as the court acknowledged, each case must turn on its facts the ruling does provide some clear parameters for cases involving horseplay such as workplace pranks and practical jokes.
Tim Riordan is a personal injury partner at CMS, and acted for Tarmac in this case