When can an employer be vicariously liable for the acts of their employee?

A common principle of employment law is that employers can be held liable for the conduct of their employees.  However, a point of regular debate is when this liability arises, especially in the case of horseplay at work.  This was recently discussed in the 2022 appeal hearing of Chell v Tarmac Cement And Lime Ltd.

In this case, Mr Chell was employed by Roltech Engineering Limited and, as part of his job, he was contracted to work for Tarmac Cement and Lime Limited (‘Tarmac’). He was working in one of Tarmac’s workshops when Mr Heath, one of Tarmac’s employees, placed two ‘explosive pellet targets’ on a bench close to Mr Chell’s right ear. Mr Heath, as a practical joke, hit the pellets with a hammer, which caused a loud explosion left Mr Chell with a perforated right ear drum, noise induced hearing loss and tinnitus. As Justice Martin Spencer noted in the initial hearing, these injuries are clearly no joking matter.

Mr Chell brought a claim against Tarmac, alleging they were vicariously liable for Mr Heath’s actions and the injuries he caused. The County Court held that Tarmac were not liable as there was not a “sufficient connection” between the horseplay acts and the conduct done in the ordinary course of employment. Mr Chell appealed the decision but the Court of Appeal upheld the original judgement, reinforcing (amongst other things) that:

• The pellets were brought on site by Mr Heath and were not work equipment;
• No part of Mr Heath’s work duties involved using or hitting pellets with a hammer;
• The act of horseplay was not connected to any instructions given to Mr Heath by Tarmac;
• Mr Heath was not Mr Chell’s supervisor and had no need to be on the same part of the site as him;

Combining all the above, Tarmac’s workshop merely provided a place for the prank to be carried out as opposed to it being within the ordinary tasks expected to be completed by Mr Heath.

The Court of Appeal also drew attention to Tarmac’s Site Rules, namely the General Conduct policy which stated that “no one should intentionally or recklessly misuse any equipment”. Mr Heath was clearly not abiding by this rule when he committed the act of horseplay and the Court noted the importance of the broadness of this rule, and the lack of need for a specific policy against horseplay or malicious behaviour given the extensive forms of behaviour that could constitute the same.

This case clearly demonstrates that there is a fine line between what is and is not considered acting within the course of employment. To ensure employers are best prepared for situations like Mr Chell’s, it is important to keep employees aware of the expectations and obligations in relation to workplace etiquette. This can be achieved by having clear and carefully written up to date rules, such as health & safety and conduct at work policies and providing regular training to employees on those rules.

For help and advice on creating your own policies and procedures, contact our employment team.