28 October, 2020
Over recent years the question of what actions of its employees an employer is and is not vicariously liable for has come before the courts on various occasions. The leading case remains Lister v Hesley Hall Ltd from 2001 which set out a 2 stage test including a test of "sufficiently close connection" between the act complained of and the role the employee was employed to carry out. The Courts, right up to the Supreme Court, have, since 2001, explored what that means in practice in various cases, of, for example assault by and employee on a member of the public; whether a prisoner working in a prison kitchen was an employee for these purposes; and other relationships other than direct employment such as in the church. The recent case of Andrew Chell v Tarmac Cement and Lime Ltd  EWHC 2613 (QB) is the latest decision in this line.
The High Court was asked to consider whether the employer, Tarmac, should be liable for an act of horseplay when a practical joke went wrong. The claimant was an external contractor working as a site fitter at the defendant's site. The defendant employed its own fitters but used external contractors in addition when necessary. Tensions had arisen between the external contractors and the employed fitters who thought that their jobs were at risk. As a practical joke one of the employed fitters brought some pellet targets onto the work site and placed them next to the claimant then struck them with a hammer. They exploded, as expected, and caused the claimant to suffer a perforated eardrum, hearing loss and tinnitus. The claimant alleged that the employer was vicariously liable for the employee's actions as well as being directly responsible by breaching its duty of care and failing to provide a safe working environment.
The High Court endorsed the trial judge's finding that Tarmac were not vicariously liable. There was not a "sufficiently close connection" between the employer-employee relationship and the wrongful actions of the employee such that the defendant should be held responsible for the act. The actions of the employee were not within the field of activities assigned to him by the employer. Contrast the Supreme Court decision of Mohamud v Morrison Supermarkets PLC from 2016 which found Morrisons vicariously liable for the action of its forecourt attendant who had subjected a customer to an unprovoked attack. It was the forecourt attendant's job to attend to customers and respond to their inquiries. He responded to Mr Mohamud's inquiry in a foul-mouthed way, ordering him off the premises, and the attack that immediately followed was said to be an unbroken chain of events. The Supreme Court said that in ordering the claimant from his employer's premises he was purporting to act in furtherance of his employer's business. While it was a gross abuse of his position, it was in connection with the business in which he was employed. Since the supermarket had entrusted him with the position of serving customers it was just that it should be held responsible for his abuse of that position. Finally, it was irrelevant that it looked as if he was motivated by personal racism rather than a desire to benefit his employer's business.
The High Court also refused to find Tarmac directly liable. Horseplay, ill-discipline and malice were not matters expected to be included within a risk assessment, and Tarmac took health and safety matters seriously. It was too much to expect them to consider a policy or rules that descended to the level of horseplay or practical jokes. They could not reasonably have foreseen the risk of injury from such deliberate acts as they were not on notice of such acts, and as the actions were not linked to the employee's work it was even more difficult to argue that Tarmac should have taken action to avoid such behaviour.
It is good to have some further clarity on when practical jokes do not lead to vicarious liability attaching. Just because something takes place in a work environment does not, of itself, make it work related such that it triggers vicarious liability. There has to be more in that the actions complained of need to further the objectives of the employer.
This case is also authority for saying that, in relation to primary liability, risk assessments do not necessarily specifically need to cater for horseplay and practical jokes. Specifically the High Court endorsed the trial judge's comment that "horseplay, ill-discipline and malice are not matters that I would expect to be included within a risk assessment".
The judge was scathing of practical jokers. He started his judgment with these words -
The practical joke must be the lowest form of humour. It is seldom funny, it is often a form of bullying and it has the capacity, as in the present case, to go seriously wrong. Mark Twain was surely right when he said:
"When grown-up persons indulge in practical jokes, the fact gauges them. They have lived narrow, obscure, and ignorant lives, and at full manhood they still retain and cherish a job-lot of left-over standards and ideals that would have been discarded with their boyhood if they had then moved out into the world and a broader life."
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