Case update (3): Vicarious liability 

What do we already know?

 We updated you in our December 2020 Newsletter Case update (2): Employer’s liability – the tribunal finds nothing to laugh about in an employee’s practical joke that the High Court in Chell v Tarmac Cement and Lime Ltd found that an employer was not liable for an employee’s practical joke that caused another person personal injury. This was because the incident was unconnected to any instruction given by the employer to the employee in relation to his work and could not be said to be within the field of activities assigned to the employee by his employer.

What’s new?

The Court of Appeal has upheld the High Court’s decision that the employer was not vicariously liable for its employee’s practical joke. Of particular importance:

  • the injury was caused by an exploding pellet target, which was not the employer’s equipment and had no place on the site.
  • hitting the pellet in no way formed part of the employee’s work. Therefore, the risk of the pellet target exploding was not inherent in the business, which only provided the background and context for the wrongful act.
  • the employee’s role was not sufficiently closely connected to his wrongful conduct.  In particular:
    • the employee’s conduct in no way advanced the purposes of his employer.
    • there was no supervisory relationship between the employee and the contractor who was injured and therefore no abuse of power by the employee.
    • there was no particular friction between the employer and the contractor who was injured at the time of the incident and the contractor had not asked to be removed from the site.

The Court of Appeal also helpfully found that there was no need for the employer to show that it had provided specific instructions or systems to avoid practical jokes or ‘horseplay’.

Implications:  This is good news for employers. However, it remains important that staff have well-defined roles and responsibilities and are made fully aware of what is appropriate behaviour at work. Also, that there are appropriate health and safety policies and procedures and the staff are provided training in this respect. Then if a practical joke does go wrong at least it will be likely be viewed as the result of the employee’s choice and (poor) sense of humour.