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Is an Employer liable for an employee’s practical joke gone wrong?

man holding phone with laughing emoji

4th November, 2020

No, held the High Court at an appeal in the case of Chell v Tarmac Cement and Lime Ltd

The claimant in this case brought a claim of negligence through vicarious liability against the employer following a practical joke involving the claimant and another employee.

Amid rising tensions between two sets of employees on site, one employee hit two ‘air pellet targets’ with a hammer to surprise the claimant in an attempted practical joke.   The resulting loud explosion caused a perforated eardrum, tinnitus and noise-induced hearing loss in the claimant.

The employee who performed the practical joke was dismissed; however the Claimant brought a further claim against the Employer alleging negligence for failing to prevent the act. The court disagreed with the judge noting…  Horseplay, ill-discipline and malice are not matters that I would expect to be included within a risk assessment. Those acts, by their very nature, are acts that the employee must know are outside behaviour that they should engage in at work.  I do not therefore accept that there was a failure by Tarmac to prepare a suitable and sufficient risk assessment because of its failure to identify in the risk assessments it has prepared the risk posed by horseplay, ill-discipline and malice.”

The matter was appealed to the High court and was struck out with the appeal judge noting that sympathy for the claimant cannot form a sound legal basis to attach liability to the employer.

Top tips for employers:

  • Establish clear Health and Safety policies.
  • Ensure employees know what behaviour and standards are expected of them in the workplace.
  • Ensure disciplinary policies include a full list of what are considered to be gross misconduct offences.

If you would like advice on workplace policies or any other Employment Law related matter please contact Debbie Coyne.

Debbie Coyne

Employment Law

Senior Associate
Email: [email protected]
Tel: 01244 405 537

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