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In the recent case of Chell v Tarmac Cement and Lime Ltd, the Court of Appeal held that the employer was not vicariously liable for an injury suffered in the workplace because of an employee's practical joke.
This decision is relevant to all businesses as there is always a risk of workplace high jinks resulting in injury and then the employer being liable for that injury. It is of particular interest to the Hospitality and Leisure sector, where there can be lots of equipment that can be misused, as well as a high turnover of employees, which can increase the scope for inappropriate behaviour in the workplace.
What is the test for vicarious liability
An employer might be 'vicariously liable' for the wrongdoing of its employees if the act complained of so closely connected with the wrongdoer's job role that it may be regarded as having been done in the ordinary course of employment.
The case: Was the business liable for the 'practical joke' by the employee?
In this case, an employee of Tarmac Cement, Mr Heath, brought explosive pellets into work and hit them with a hammer near to Mr Chell's ear. The explosion resulted in Mr Chell suffering a perforated eardrum, hearing loss and tinnitus. Mr Heath was dismissed from his position.
The court's decision
Whilst Mr Heath was an employee of Tarmac Cement, and the incident occurred at work, the Court confirmed that there was not a sufficiently close connection between the act of exploding the pellet and his job role (as a site fitter) to make it fair to impose vicarious liability on Tarmac Cement. In coming to its decision, the Court noted that the explosive pellet was not Tarmac Cement's equipment and was not used by Mr Heath as part of his work or authorised by Tarmac.
The Court also disagreed that there was a reasonably foreseeable risk of injury or violence due to tensions in the workplace between Mr Heath and Mr Chell, and it would be unreasonable and unrealistic to expect an employer to have in place a system to ensure employees refrained from practical jokes, as it should have been known to the employees that this was inappropriate.
What should employers do to avoid liability?
The case takes a narrow approach to the liability of employers for the wrongdoings of their employees. This will be welcomed by employers, particularly those within the Hospitality and Leisure sector where there is potential for inappropriately misusing any equipment.
The case also highlights that there must be a sufficient connection between the employment and the incident in question for an employer to be held vicariously liable. However, when incidents occur in the workplace, it can be possible for a connection to be made. Therefore, it is also important to demonstrate that employees should know that high jinks or misuse of equipment is inappropriate and will not be tolerated.
Further, it is advisable to perform risk assessments to identify any foreseeable risks, including in the use of work equipment. In this case, Tarmac Cement had put in place general rules stating that no employer should intentionally or recklessly misuse any equipment, which the Court took into account in deciding there was no vicarious liability.
Businesses should ensure their policies and health and safety procedures are up to date. If you are a business and would like more information regarding vicarious liability, you can contact our specialist Hospitality and Leisure Team below.