Jack Latham, Employment Associate, Myerson Solicitors.
In the recent business case of Chell v Tarmac Cement and Lime Ltd, the Court of Appeal held that the employer, manufacturer Tarmac Cement, was not vicariously liable for an injury suffered in the workplace because of an employee’s practical joke.
The recent decision is one that will be of interest to all employers and businesses in particular those within the manufacturing industry.
What is the test for Vicarious Liability?
An employer may be ‘vicariously liable’ for the wrongdoing of its employees, but only if the wrongdoing meets the criteria of a two-stage test:
- Is there a relationship between the primary wrongdoer and the person alleged to be liable? (such as an employer/employee relationship); and
- Is the act complained of so closely connected with wrongdoer’s job role that it may be regarded as having been done in the ordinary course of employment?
The case: was the business manufacturer held liable for the ‘practical joke’ by the employee?
In this case, an employee of Tarmac Cement, Mr Heath, brought explosive pellets into work and hit them with a hammer near to Mr Chell’s ear. The explosion resulted in Mr Chell suffering a perforated eardrum, hearing loss and tinnitus. Mr Heath was dismissed from his position.
Whilst Mr Heath was an employee of Tarmac Cement and the incident occurred at work, the Court confirmed that there was not a sufficiently close connection between the act of exploding the pellet and his job role (as a site fitter) to make it fair to impose vicarious liability on the manufacturer Tarmac Cement. In coming to its decision, the Court noted that the explosive pellet was not Tarmac Cement’s equipment and was not used by Mr Heath as part of his work or authorised by Tarmac.
The Court also disagreed that there was a reasonably foreseeable risk of injury or violence due to tensions in the workplace between Mr Heath and Mr Chell and it would be unreasonable and unrealistic to expect an employer to have in place a system to ensure employees refrained from practical jokes, as it should have been known to the employees that this was inappropriate.
Key learning point: when will an employer be liable for the actions of an employee?
The ruling continues to keep a narrow approach to liability of employers for the wrongdoings of their employees. This will be welcomed by employers particularly within the manufacturing sector as an industry that utilises a range of tools, the potential for inappropriately misusing any equipment is within possibility.
This case highlights that, for an employer to be held vicariously liable, there must be a sufficient connection between the employer, the employee and the incident in question. In short, there will normally only be liability for the employer if the employee’s actions that caused the damage occurred under the instructions of the employer or in connection with their job role.
In the manufacturing sector, employees will tend to regularly handle machinery to perform a specific task. Which is why it is advisable to perform risk assessments where risks are foreseeable, including in the use of heavy machinery or tools. In this case manufacturer Tarmac Cement had put in place general site rules stating that no employer should intentionally or recklessly misuse any equipment.
Businesses should ensure their policies and health and safety procedures are up to date. If you are a business and would like more information regarding vicarious liability, you can contact Myerson Solicitors surrounding this article.