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 was nothing to do with his work, even though it was at work, during work time. The practical joke was not a wrongful act authorised by the employer or a wrongful mode of carrying out an authorised act. The 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 [2022] EWCA Civ 7 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. Mr Chell alleged that Tarmac were liable directly and vicariously for the act of their employee. The claim had been dismissed at first instance and on appeal to the High Court. The Court of Appeal heard the second appeal on the grounds of vicarious and direct liability. Mr Chell argued that the act of the employee causing him injury was sufficiently closely connected to his work of the employer that it was fair, just and reasonable for the employer to be held liable. In addition, Mr Chell argued that the employer had breached their 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 agreed with the courts below that it is simply unrealistic to expect an employer to effectively implement a risk assessment process for general horseplay, ill discipline or malice.
If an employer was on notice 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.
Otherwise, standard site rules, as were in place in this case, 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 purposed of his employer.
The Court of Appeal found the following points to be 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 material 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.
Comment
Insurers and 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. Insurers will welcome the clarity that the Court of Appeal decision brings when assessing these difficult cases involving both direct and vicarious liability. Whilst, 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.
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