When horseplay goes wrong, can an employer be responsible?

When horseplay between employees ends badly, can an employer be deemed liable?

A recent Court of Appeal decision held not...but only on the facts of the case and it is still possible that an employer can be vicariously liable when horseplay between employees goes wrong.

To recap, where vicarious liability is established in employment law it means that an employer is legally responsible for the acts of their employees. An employer can put forward a defence to this if they can show that they took reasonable steps to prevent the act from occurring, or that the act itself happened outside of the course of employment.

In Chell v Tarmac Cement and Lime Ltd, Mr Chell, the Appellant who was a site fitter working for Roltec Engineering Ltd, suffered an injury whilst at work caused by Mr Heath, a fitter of Tarmac (the Respondent). There had been friction between the two companies' fitters, and the Tarmac fitters feared they would be replaced by the Roltec fitters. Concerns had been raised by the Appellant but his evidence suggested that he had been told to "stick it out". The tensions were found not to have included any threats of violence.

One day whilst working on the same site, Mr Heath placed two pellet targets on a bench near to the Appellant's right ear and hit them with a hammer. The noise was so intensely loud that the Appellant suffered hearing loss and tinnitus.

The Appellant brought claims against Tarmac for:

1. Being vicariously liable for the actions of Mr Heath; and,

2. For negligence in that they breached their duty to take steps to prevent a reasonably foreseeable risk of injury.

Reference was made throughout the Judgment to two previous cases and the principles established therein, namely Lister v Hesley Hall Ltd and Muhamud v WM Morrisons Supermarket Plc.

The Appellant's claims were dismissed by the Court of Appeal and the decision of the High Court was upheld. The Judge found that Mr Heath's actions were meant as a practical joke. It was found and agreed by the parties that the tensions between the fitters had eased before the accident. The fact that Tarmac had provided the equipment used by Mr Heath during the 'prank' did not mean that what he did was an activity assigned to Mr Heath by Tarmac. Mr Heath had not meant to harm the Appellant and it was found to be a 'miscalculation of his actions'.  As such, the facts of the case were outside of the scope of vicarious liability.

The 'reasonably foreseeable' argument also failed as although hostilities existed between the fitters, a duty could not be established; the fact that there were tools present on site which could be misused did not itself create a reasonably foreseeable risk of injury.

Nicola Davies LJ stated at paragraph 36 that "Common sense decreed that horseplay was not appropriate at a working site. The fitters were employed to carry out their respective tasks using reasonable skill and care, and by implication to refrain from horseplay. It would be unreasonable and unrealistic to expect an employer to have in place a system to ensure that their employees did not engage in horseplay."

Simler LJ and William Davis LJ agreed and the Appellant's claims were dismissed.

Comment

This judgment will come as welcome news to employers who are concerned about the extent of their responsibility towards their employees' actions. However, employers should remain vigilant as each case will turn on its own facts and whether there was a close connection between the act and the activities of employment.  Reasonable steps should thus be taken by employers when it comes to issues of vicarious liability.

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