Horseplay at work – is the employer responsible for the fallout?

In the case of Chell v Tarmac Cement and Lime Limited, the Court of Appeal considered whether an employer was responsible for a serious injury sustained by a third-party contractor, caused by a practical joke of one of its employees.

Background

Vicarious liability renders an employer liable for the wrongdoing of its employees. It is ‘strict liability’, which means that there is no requirement for the employer to have done anything wrong for liability to arise. Regardless of whether the employer is at fault, it can be held responsible for its employees’ wrongful actions.

Over the past 20 years, we have seen a large amount of development in this area of the law, with the courts and tribunals testing and, over time, expanding the boundaries of vicarious liability. You will have seen some of these cases in the news. For example, in 2010 the Archdiocese of Birmingham was found to be vicariously liable for the sexual assaults perpetrated by a priest on a young boy. Conversely, in 2020 the Supreme Court found that Morrisons was not vicariously liable for a significant data breach deliberately perpetrated by one of its employees (please click here for our comments on the Morrisons decision and its implications).

Another example can be found in the leading case in this area, also involving Morrisons, but back in 2016: Mohamud v WM Morrison Supermarkets. In this case, Mr Mohamud visited a petrol station owned by Morrisons where he was racially abused and assaulted by an employee of the Company. The Supreme Court found that Morrisons was vicariously liable for the attack. In its judgment, the Supreme Court clarified and confirmed the two-stage test which must be satisfied for vicarious liability to arise:

• Stage 1: The relationship between the wrongdoer and employer must be capable of giving rise to vicarious liability. It is well established that the employment relationship is one such relationship where vicarious liability arises, which means employers can be liable for the wrongdoing of its employees and workers. Only where the wrongdoer is genuinely carrying out business on their own account, and the relationship is not “akin” to employment, will the employer escape vicarious liability.  
• Stage 2: The wrongful conduct must be so closely connected with the acts the wrongdoer was authorised to do, that for the purposes of the liability of the employer, it can fairly and properly be regarded as done whilst acting in the ordinary course of its employment. This is the so-called “sufficient connection” test and it is often the main point of contention in litigation. Essentially this means that, unless the wrongdoing is sufficiently linked to the wrongdoer’s employment, vicarious liability cannot arise.

Facts

Mr Chell was a site fitter employed by a company called Roltech Engineering Limited (‘Roltech’). As part of his job, Mr Chell was contracted to work for Tarmac Cement and Lime Limited (‘Tarmac’).

On 4 September 2014, Mr Chell was working in the workshop on Tarmac’s site when he bent down to pick up a length of cut steel. One of Tarmac’s employees, Mr Heath, brought two ‘pellet targets’ with him on to the site and placed them on a bench close to Mr Chell’s ears. As a ‘practical joke’, Mr Heath then hit the pellets with a hammer causing a large explosion. However, the result was no laughing matter. Mr Chell suffered a perforated right eardrum, noise-induced hearing loss and tinnitus.

Mr Chell brought a claim against Tarmac who he alleged was vicariously liable for Mr Heath’s actions and the injury that he sustained as a result.

The High Court held that Tarmac was not vicariously liable for Mr Heath’s actions (please click here for our report on the High Court’s decision). Although stage 1 of the test set out in the Mohamud case was satisfied, because Mr Heath was an employee of Tarmac, the High Court found that Mr Chell’s case fell down at stage 2 because there was not a sufficient connection between the practical joke committed by Mr Heath and his day-to-day employment activities. The fact that Mr Heath used a hammer to perform his duties was wholly incidental; Mr Heath was not authorised to bring pellets on site and it formed no part of his duties to hit pellet targets with a hammer at work.

Not content with the High Court’s decision, Mr Chell appealed to the Court of Appeal.

The Court of Appeal agreed with the findings of the High Court and dismissed Mr Chell’s claims. Whilst accepting that horseplay could give rise to vicarious liability in the workplace, this was not the case here because the “sufficient connection” test had not been satisfied.

Comment

At first glance it might not be obvious why the Court of Appeal found against Mr Chell, when it was decided in the Mohamud case that Morrisons were liable for assault caused by its employee on a customer. The difference between the two cases is that, in the latter case, Mr Mohamud assaulted a customer during the course of his normal duties: namely, serving a customer. Whereas in the Chell case, Mr Chell was assaulted during the course of a practical joke, outside of the normal activities of the wrongdoer in question.

It remains to be seen whether the case will be appealed to the Supreme Court, but it seems unlikely that the decision will change. Assuming the Court of Appeal’s decision stands, it was a ‘near miss’ for Tarmac. Recent case law, including in particular the Mohamud case, has given courts and tribunals plenty of ‘wiggle room’ to find vicarious liability in circumstances which one might not ordinarily expect. It should also be borne in mind that, where an employer is not found to be vicariously liable, often the claimant is left without a remedy, due to the wrongdoer not having deep enough pockets to pay compensation. This is arguably a factor that has led to a relaxation in the tests for vicarious liability in recent years.

Employers should remain alert to the risks that these sorts of cases present. Carefully written policies on areas such as health and safety and appropriate behaviour at work should be drawn up if these are not already in place and all staff should receive adequate training in order to try and mitigate the risk of liability falling at the employer’s doorstep.

A link to the full judgment can be found here.

Contributor: John Smith