The Court of Appeal has ruled that a firm is not vicariously or directly liable for an injury at one of its worksites that happened as a result of an attempted practical joke by one of its employees.
Upholding a previous ruling by the High Court, the Court of Appeal found that Tarmac Cement and Lime Limited was not liable for injuries suffered by Andrew Chell, who was working at one of its sites as a contracted fitter, caused when an employee intentionally detonated two explosive pellets close to Chell, nor was it vicariously liable for the actions of the employee.
Lady Justice Nicola Davies added that it would be “unreasonable and unrealistic” to expect an employer to have a system to ensure that their employees did not engage in “horseplay”.
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“Common sense decreed that horseplay was not appropriate at a working site,” said Davies in her ruling, adding that fitters were employed to carry out their respective tasks using reasonable skill and care, and by implication to refrain from horseplay.
The judges also said that Tarmac’s general site rules prohibited “intentionally or recklessly” misusing any equipment, which it considered a warning against exactly the behaviour of Anthony Heath, who had placed two explosive pellets next to Chell’s ear and hit them with a hammer.
Experts have said the ruling will be a welcome relief for employers. “Employers will draw comfort from this judgment, especially given its binding authority on lower courts”, said Alan Lewis, partner at Constantine Law.
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“It shows that the courts will take a mature and measured approach to what might happen in the workplace and will accept that employers are not expected to foresee mindless actions on the part of its staff that defy common sense and the employer should not bear responsibility for the consequences,” he explained.
This was echoed by Maria Hoeritzauer, partner at Crossland Employment Solicitors, who added that the ruling would be helpful in clarifying when an employer could be vicariously liable for an employee’s actions. “We have seen in recent years that the courts are taking a stringent and narrow interpretation when determining the scope of employer’s vicarious liability,” she said.
However, Hoeritzauer warned employers against complacency, suggesting that firms should ensure all staff are aware of the conduct expected of them, that horseplay or practical jokes are not acceptable and can result in injury and investigate all allegations of tension.
“Disciplining and potentially dismissing an employee because of a practical joke which has backfired will be reasonable,” she added, but said it is sensible to ensure that the employment contract and policies make this clear, so as to avoid any confusion as to what is expected of staff.”
While Chell was working as a contracted fitter for Roltech at Tarmac’s site in Bayston Hill Quarry, Shropshire in 2014, Heath, as a practical joke, detonated two explosive pellets close to Chell which resulted in a perforated right eardrum, noise-induced hearing loss and tinnitus.
Prior to this practical joke, there had been tension between the contracted fitters from Roltech and employees at Tarmac, because the Tarmac fitters were concerned they would be replaced by the Roltec fitters.
Heath was dismissed as a result of the incident following an investigation conducted by Tarmac, but Chell brought a negligence claim directly against Tarmac, and also claimed Tarmac was vicariously liable for Heath’s actions.
During the initial Employment Tribunal, the judge ruled that Heath's actions in hitting the two pellet targets with a hammer were not within the field of activities assigned to him by Tarmac, nor was the tension between the two sets of staff serious enough to make it right to hold Tarmac liable.
Chell then appealed in October 2019 with the claim that the company breached its duty to take measures to prevent a foreseeable risk of injury and should be held vicariously liable for the actions of its employee. However, this too was dismissed in 2019 by the High Court.
This decision was then brought by Chell to the Court of Appeal, where it was dismissed.
Tim Riordan, a personal injury partner at CMS who acted for Tarmac in the case, described the ruling as a “crucial decision which rejected the notion that employers are responsible for the consequences of employee practical jokes at the workplace”.
He added that, had the Court of Appeal ruled in favour of Chell, “employers would have been forced to reconsider their entire risk assessments and would have had to take unreasonable measures to avoid risk of injury from horseplay at the workplace”.
Chell could not be reached for comment.