Case Update: Employer not liable for injury caused by a workplace prank

Posted on: January 20th, 2022

A recent case is a reminder that employers can be held liable for actions that employees take, even where the actions were not expected, and the employer has done no wrong.  For an employer to be held liable, there must be a sufficient connection between the action the employee takes and the employee’s role and duties. 

In this article we explain the law, provide details of the most recent case, and provide guidance on the steps employers can take to protect themselves.

In the recent case of Chell v Tarmac Cement and Lime Ltd, the Court of Appeal held that an employer was not vicariously or directly liable for the injury caused to an external contractor by one of its employees because of a practical joke.

This case will come as a welcome relief to employers as it demonstrates that the courts will take a reasonable and measured approach to vicarious liability cases and will not expect employers to be able to foresee unpredictable and irrational actions on the part of its staff members that are unrelated to their job role or employment.

Despite this ruling, employers should tread carefully and not assume that they will never be liable for any acts of horseplay within the workplace. 

It is worth reminding employees of what behaviour is acceptable in the workplace and that deliberate acts of horseplay or ill-discipline will not be tolerated.

You may also wish to consider training. We have worked with clients to deliver internal training to staff to cover the issue of vicarious liability and to address what is and isn’t acceptable behaviour in the workplace.

Full details of the case, the law and the implications are detailed below.

What were the facts of the case?

Mr Chell was a contractor who had been providing services to Tarmac Cement and Lime Ltd (Tarmac). This had caused friction between Mr Chell and the employees of Tarmac as they thought their jobs were at risk of redundancy. Mr Chell had raised this with his supervisor but continued to work on the site.

A couple of weeks later, one of Tarmac’s employees decided to play a practical joke on Mr Chell. Two pellet targets were arranged on a work bench near to Mr Chell’s right ear. The employee then hit these pellets with a hammer which caused them to explode, perforating Mr Chell’s ear drum as well as causing him hearing loss and tinnitus.

Mr Chell subsequently brought a personal injury claim in the County Court against Tarmac on the basis that they were vicariously liable for their employee’s negligent actions which had caused Mr Chell’s injury. The County Court held that Tarmac was not vicariously liable in this situation as, whilst the incident had happened in the workplace, the actions of the employee were unconnected to any instruction or task given by Tarmac in relation to his employment. Specifically, the employee was not required to use pellets as part of his job role, he was also not working on the same task that Mr Chell was working on at the time of the incident and further, the risk was not one that was inherent or obvious within the business. As such, it was not fair, just or reasonable to impose vicarious liability.

In addition, Mr Chell also argued that Tarmac was directly liable for his injuries on the basis that they had not complied with their duty of care and had failed to provide a safe work environment. The County Court also rejected this argument on the basis that, on the facts of this case, it was not reasonably foreseeable that risk of injury could occur as a result of horseplay within the workplace. Even though Mr Chell had reported tensions to his supervisor, there was no suggestion that these tensions would have resulted in any kind of violent behaviour or that it would have caused an employee of theirs to behave in this way.

The case was appealed up to the High Court and then the Court of Appeal. Both Courts agreed with the decision of the County Court and the appeals were dismissed.

What are the key lessons from this case?

The case highlights that there needs to be a sufficiently clear connection between the employer and employee, and the tasks assigned to the employee as part of their role, for the employer to be held responsible for the actions of particular employees. Each case will turn on its facts and the outcome in these types of cases is likely to depend on a number of factors including whether what the employee was doing was in the field of activities carried out by the employee as part of their role, where and when the incident took place, whether the employee was representing or advancing the purposes of the employer at the time, whether there was any advanced warning of what might happen and what was said at the time of the incident.

On the facts of this specific case, had the Court of Appeal made a decision to the contrary, employers would have been forced to update their entire risk assessments and to take unreasonable measures, such as searching employees prior to them coming into work to check that they haven’t brought anything potentially dangerous into the workplace, to avoid the risk of injury from horseplay that could not have been obviously foreseen.

Steps employers should take

Despite this ruling, employers should tread carefully and not assume that they will never be liable for any acts of horseplay within the workplace.  

It is worth reminding employees of what behaviour is acceptable in the workplace and that deliberate acts of horseplay or ill-discipline will not be tolerated.

Whilst you cannot be expected to foresee all risks that could occur in the workplace, by reminding employees of the behaviour that is expected from them, and examples of behaviour that isn’t appropriate, you can try to mitigate against the risks of horseplay occurring within your organisation. This will also help to demonstrate that you are doing all you can as an employer to comply with your duty of care towards employees and to provide a safe place to work. 

We have worked with clients to deliver internal training to staff to cover the issue of vicarious liability and to address what is and isn’t acceptable behaviour in the workplace.  Such training has taken place in person or virtually and has helped employers demonstrate that they took reasonable action to train staff and make them aware of acceptable behaviour.  However, it has also provided efficient training to staff as there is no limit on the number of attendees. 

If you have any questions regarding vicarious liability, or would like to discuss bespoke training packages, please don’t hesitate to get in touch with our Employment Team. We would be happy to assist you.