4th November, 2020
Is an Employer liable for an employee’s practical joke gone wrong?
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.
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