While employers are clearly responsible for the actions of their employees acting in the course of their work (known as vicarious liability), interesting issues arise when an employee does something that is not directly linked to their work, that then causes injury to others. Is the employer still responsible?

This issue was explored in a recent case heard by the Court of Appeal; Chell v Tarmac Cement and Lime Limited. Mr Chell and his brother were employed by Roltec Engineering Limited as site fitters.

They were required to undertake work on the Tarmac site, working alongside site fitters directly employed by Tarmac. There were tensions between the two groups of employees. It appeared that the fitters employed by Tarmac were worried that they would be replaced by the fitters employed by Roltec. Mr Chell raised the issue with the managers at Tarmac and asked to be taken off the project as a result, but was persuaded to continue for a few more weeks.

Shortly thereafter, a fitter employed by Tarmac (Mr Heath) decided to play a joke on Mr Chell; he placed two large pellets on a bench very close to where Mr Chell was working and struck them with a hammer, causing a loud explosion next to Mr Chell’s right ear. As a result, Mr Chell sustained a perforated right eardrum, which caused hearing loss and tinnitus. 

Mr Chell brought a claim for personal injury against Tarmac. He argued that they were vicariously liable for the actions of their employee, Mr Heath. Tarmac had already dismissed Mr Heath for his actions. However, they denied that they should be liable to Mr Chell for the actions of Mr Heath. At the trial in the County Court, the judge found that the pallets used in the joke had been brought into work from outside and were not used as part of Mr Heath’s work, although the hammer was. The Judge had to decide whether Mr Heath was acting ‘in the course of his employment’.

They found that he was not; there was an insufficient connection between Mr Heath’s work and his actions in playing a joke on Mr Chell. The practical joke was not ‘within the field of activities’ Mr Heath was employed to do, and he had not primarily used work equipment to play the joke.

The joke itself was unconnected to his work; work just provided him with the opportunity to play the prank. Mr Heath had not intended to harm Mr Chell. Mr Chell argued that the tensions between the two groups of employees had been reported, such that Tarmac should have taken steps to reduce the risk of such an incident occurring.

The Judge did not agree with that in this case; there was not a sufficiently close connection between the risks of tension on the site, and the practical joke, such that Tarmac could not be liable for Mr Chell’s injury. Mr Chell also argued that Tarmac should have conducted a risk assessment and assessed the risk of ‘horseplay’ occurring; the Judge took the view that this was not necessary as employees should know that they should not behave in such a manner at work and it was not necessary to tell them so. 

Mr Chell appealed to the High Court (which did not succeed) and then to the Court of Appeal. They also dismissed his appeal. They agreed with the original Judge that there was no connection between the ‘joke’ and the work of Tarmac’s employees; the nature of the friction between Tarmac’s employees and those it engaged via a sub-contractor was not likely to result in violence.

Mr Heath was not authorised to do what he had done, nor was his act an unlawful way of doing something that he was authorised to do. 

It was not realistic to expect an employer to expressly include a statement in their risk assessments that their staff shouldn’t engage in horseplay or to expect them to have a system in place to stop it, since ‘‘common sense decreed that horseplay was not appropriate at a working site’.

This case is another interesting example of the boundary between what employers are liable for, and what they are not. The critical issue is the connection between the work the employee is required to perform, and the act in question.

The closer the link, the more likely the employer will be vicariously liable. However, where an employer becomes aware of facts that might increase the risk that inappropriate acts might occur, they do have an increased responsibility to take steps to reduce those risks. While not fatal in this case, it is never a bad idea to remind employees that practical jokes are not funny and can go seriously wrong, causing significant consequences.  

Safia Tharoo
Barrister, 40 Bedford Row, London