When the laughter stops - when is an employer liable for an employee’s practical joke?

This case follows a recent run of vicarious liability cases in the Supreme Court, from which we have derived the principle that an employer can be liable for acts of individuals if:

• that individual was either an employee or in a relationship “akin to employment” and
• the wrongful act was done “in the course of employment”

The first limb of the test arose from a series of cases between 2016 and 2018 which were billed as dramatically extending the scope of vicarious liability. The second limb of the test, which has been emphasised in the more recent decisions, is likely to be seen as a welcome limitation to this concept. 

Andrew Chell was employed by Roltech Engineering Limited (“Roltech”) as a site fitter.  From December 2013 his services were contracted out to Tarmac Cement and Lime Limited (“Tarmac”).  Tarmac also employed its own fitters and it was clear that there were tensions between the Roltech fitters and Tarmac fitters. On 4 September 2014 the claimant was working in the workshop on the site when he bent down to pick up a length of cut steel. One of the Tarmac fitters, Mr Heath, had brought two “pellet targets” with them to site and he put those on a bench close to the claimant’s right ear and hit them with a hammer causing a loud explosion. Whilst the incident was clearly intended as a prank, the claimant suffered a perforated right eardrum, noise induced hearing loss and tinnitus. Mr Heath was dismissed from his employment. 

The claimant subsequently brought proceedings against Tarmac alleging that they were directly negligent and also that they were vicariously liable for the actions of Mr Heath. Both claims failed in the County Court, a decision subsequently endorsed on appeal by the High Court.

In reaching this decision the High Court found, based on existing case law, including the recent Supreme Court judgment in Morrisons v Various (in which a disgruntled employee copied substantial personal data, including payroll data of a large number of Morrisons’ employees onto a USB stick which he later took home and published on a file sharing website), that it was clear “the wrongful conduct had to be so closely connected with acts the employee was authorised to do that, for the purposes of the liability of the employer to third parties, it might fairly and properly be regarded as done by the employee while acting in the ordinary course of his employment”.

In order to make this determination, the relevant case law has given rise to a further two stage test in which, one must firstly ask “what functions or "field of activities" had been entrusted by the employer to the employee”, before considering “whether there was sufficient connection between the position in which the employee was employed and his wrongful conduct to make it right for the employer to be held liable”.

Here, the High Court held that the actions of Mr Heath were not so closely connected with the ordinary course of his employment so as to give rise to a finding of vicarious liability.  In particular, they endorsed the County Court’s view that the following factors were relevant:

1. the pellet target was brought onto site either by Mr Heath or one of his colleagues – it was not work equipment
2. it formed no part of Mr Heath’s work to use pellet targets, let alone hit them with a hammer
3. what Mr Heath did was unconnected to any instruction given to him in connection with his work
4. Mr Heath had no supervisory role in relation to Mr Chell’s work and at the relevant time; he was meant to be working on another job on another part of the site
5. the striking of the pellet target with a hammer with a hammer did not in any way advance the purposes of the employer and
6. in all of those circumstances work merely provided an opportunity to carry out the prank

This case serves as a useful reminder that an employer will not automatically be liable for acts of its employees, even if those acts are committed in the workplace during working hours, which will no doubt come as a relief to employers and their insurers.

For further guidance see our briefings Morrisons appeal success in landmark data privacy case and Independent contractors and vicarious liability.