Employer not liable for practical joke that backfires, rules High Court

Out-Law News | 03 Dec 2020 | 12:15 pm |

Katy Docherty tells HRNews why a recent High Court decision gives comfort to employers over workplace risk assessments.  
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  • Transcript

    Employers are sometimes held liable for employees' ill-advised practical jokes that go wrong. When the outcome is a serious personal injury t can result in very significant liability for the employer. The good news is the High Court has just handed down a decision that helps employers understand this rather grey area of the law, vicarious liability, and to put limits on when that liability will arise. The court says the employer will not be liable if the practical joke was outside of the ordinary scope of the employees’ activities, even though it was on the employer’s premises, during work hours and partially carried out with work equipment provided by the employer. The claimant in this case was Mr Chell who was a subcontractor working for Tarmac on their premises. He was injured when an employee of Tarmac carried out a poorly judged practical joke, setting off explosive pellet gun targets by hitting them with a hammer close to the claimant’s head. As a consequence Chell suffered permanent damage to his hearing. The employee was subsequently dismissed from his employment. Chell alleged that he was targeted for the practical joke due to tensions between the workforce and subcontractors and he alleged Tarmac were directly and vicariously liable for the action of their employee. He asserted Tarmac should have carried out a risk assessed for the foreseeable risk of injury arising from the tensions between the workforce and subcontractors and so were responsible for the actions of the employee causing the injury. The High ruled that Tarmac was neither vicariously nor directly liable for the actions of the employee because the employee's actions did not further the objectives of the employer. So clearly a good outcome for Tarmac but how helpful is this decision across the board? To help with that, on the line from Glasgow, Katy Docherty:

    Katy Docherty: “The key reasons why he was unsuccessful in this case are quite interesting and worth looking at from an employer's point of view. So the first point was that the pellet gun target wasn't work equipment – it had been brought on site by the by the employee – and really interestingly, the court said that using, let alone hitting, a pellet gun target did not form part of their employee's duties. It didn't further or advance the employer's goals in any way and that was one of the key takeaways from the case. It was clear the employee was on a frolic of his own and he wasn't engaged in furthering the business of his employer. As a separate point that they also found that it wasn't reasonable that the employer should have had to risk assess the chance of malice or horseplay. So from a practical perspective, I think there are three key points for employers to bear in mind when considering why this case is useful for them.  First of all it provides clarity on the rather vexed question of whether wrongful conduct by an employee can properly be regarded as having taken place in the course of their employment and, as I said before, what's really important about this case is that the High Court really focused on whether the actions of the employee were furthering the employer's objectives or goals in any way, and the court found that really they didn't and that was one of the cruxes of the decision that they made. Another point, though, for employers to bear in mind is that this case can't be used as a kind of 'get out of jail free' card, that rationale, because if the conduct committed by the employee is discriminatory the employer may still be vicariously liable under the Equality Act because there's a different legal taste for  liability there and the reason for that is that under the Equality Act anything that a person does in the course of that employment is treated as done by the employer unless the employer took reasonable steps to prevent that conduct. So in the Chell case, which didn't have discriminatory conduct, we just had stupid practical joke, but if it's a discrimination case the situation is not quite as straightforward. The final separate point that employers can take from this is that a court has confirmed that it is not reasonable to expect an employer to sink to the level, almost, of practical jokes and horseplay when they're carrying out risk assessments on site. So an interesting practical point and some interesting clarification on when vicarious liability will apply.”

    Finally, just to say, this decision is entirely consistent with the Supreme Court's decision earlier this year in Morrisons. That was the case where the supermarket was held not to be vicariously liable for an employee's breach of data protection laws when a former senior auditor of the company, Andrew Skelton, copied the data of 126,000 employees onto a personal USB stick and uploaded it to a website and attempted to frame a fellow employee for the breach. That was an important ruling and we covered it in some detail at the time – you can find that article on the Outlaw website.