When practical jokes go badly wrong

Is an employer vicariously liable for its employees’ practical jokes? Zoë Wigan, Ceri Fuller and Hilary Larter analyse a recent High Court judgment.

In Andrew Chell and Tarmac Cement and Lime Ltd [2020] EWHC 2613 (QB) four individuals were working in an office in a quarry. Two of them were employed by the company that owned and ran the quarry, Tarmac Cement and Lime Ltd, and two were contractors. There was tension between the employees and the contractors because the employees (wrongly) perceived the contractors to be a threat to their jobs. Mr Chell was one of the contractors and Mr Heath was one of the employees.

Mr Chell was working in the onsite workshop. Mr Heath had brought two “pellet targets” into work. When Mr Chell bent down, Mr Heath placed the pellet targets on a bench close to Mr Chell’s ear, and hit them with a hammer. This caused a loud explosion. This was intended as a practical joke but, as the judge commented, the result was “no joking matter”. Mr Chell suffered a perforated ear drum, noise-induced hearing loss and tinnitus. Mr Heath was dismissed.

Mr Chell claimed in the County Court that Tarmac had been negligent. He also claimed that Tarmac was vicariously liable for the acts of Mr Heath. The County Court rejected both claims, and Mr Chell appealed to the High Court which upheld the County Court judgment.

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The High Court considered that it would be expecting too much for an employer to have to devise and implement health and safety (or other) policies which cover horseplay or practical jokes. The court accepted that Tarmac had been made aware of tensions between employees and contractors, but these tensions were not so serious as to suggest that there was a threat of violence, and there was therefore no foreseeable risk of injury. Tarmac would not have been expected to increase supervision to prevent horseplay, ill-discipline or malice.

The High Court held that the County Court had correctly identified the legal questions to be decided in assessing vicarious liability. These were whether there was a sufficient connection between the employment relationship and the relevant act, having regard to the field of activities entrusted to Mr Heath, to make it just for Tarmac to be held responsible for the act. The County Court judge had been entitled to find that Mr Heath’s activities were not within the field of activities given to him. Of particular relevance were the facts that: Mr Heath had brought the pellets in from work, and they were nothing to do with his work; Mr Heath’s actions were unconnected with any instruction given to Mr Heath in connection with his work and they did not in any way advance Tarmac’s purpose; and the workplace merely provided the opportunity for Mr Heath to carry out the prank - the fact that the prank happened in the workplace did not mean that the prank was within work activities. The only other link between work and the prank was the fact that Mr Heath used Tarmac’s hammer, and this was not enough to create vicarious liability. Tarmac was not therefore vicariously liable for Mr Heath’s actions.

What does this mean for employers?

This is a good result for employers. In light of this judgment, it is unlikely that vicarious liability will arise in circumstances where a claimant has been injured as a result of horseplay or a practical joke. However, if employers become aware of circumstances that point towards the possibility of horseplay or physical violence, they would still be prudent to take steps to prevent it from happening.

Zoë Wigan is a consultant, Ceri Fuller is Practice Development Manager (Legal Director) and Hilary Larter is a consultant at DAC Beachcroft.

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