We All Know What a Good Laugh a Practical Joke Can Be. But Who Is Liable When It All Goes Wrong

What Has Happened?

On 24^th November 2021 the Court of Appeal handed down its judgment in the case of Chell v Tarmac and Lime Limited which centred around a workplace incident whereby an employee was carrying out maintenance to a ceiling whilst working at a depot. Another employee was located at the same premises and working close to the first employee. Events became legally interesting when the said fellow employee began partaking in horseplay activities.

What Does It Mean?

This case provides welcome clarity to lawyers specialising in employment law advising on similar scenarios. The esteemed Court of Appeal judges decided that similar employee using a non-work-related piece of equipment to carry out a practical joke on a fellow employee which was not linked to his personal job role or responsibilities then the employer was not responsible for a practical joke. The Court of Appeal elaborated that this would be the case despite the practical joker’s work being performed during his own working hours. The Court appears to have cemented the approach taken in the House of Lords vicarious liability case of Lister v Hesley Hall Limited as confirmed in the Supreme Court case of Morrisons v Various Claimants.

What Impact May It Have On The Legal Profession?

Lawyers are likely to be facing an influx of approaches from employees affected by similar situations and they need to be advised on the reality of the situation as it will be less likely for such employees seeking to shift the blame onto their employers. In a pro-business decision Mr Justice Martin Spencer communicated clearly that similar arguments would be unlikely to succeed as employers would not be held vicariously liable if similar employees partake in activities involving ill-discipline, malice or horseplay. The judiciary have sent out a warning to claimants contemplating embarking on such endeavours because if found to be ‘going off on a frolic of his own’ then this reduces the prospects of successfully finding the employer vicariously liable.

However, this decision is not a get-out-of-jail-free-card for employers and the judgment clarifies when employers may be liable for employee actions. Lawyers should be advising on the test that the judiciary appear to be applying. An employer could potentially find themselves vicariously liable if a correlative and causative relationship was found between the action of the employee constituting misconduct, the activities being carried out by the other respective employees which caused injury to the employee and if this was interpreted to be within the ambit of the employee’s activities.

Interestingly a standout point from this case is around risk assessments to assess the likelihood of such incidents occurring. Mr Justice Spencer answered the question directly believing it would go too far if similar businesses risk-assessments were expected to cross-over into the realm of practical jokes and horseplay as the majority of these businesses already conduct sufficient health and safety risk assessments and take such matters very seriously.

If these three conditions are satisfied, it is reasonable for courts to find the respective employer vicariously liable. In light of this decision, employers should be advised to mitigate against the risk of being held liable by ensuring they have up-to-date employers-liability insurance to adequately cover their position. Such businesses should be keeping their contracts, policies, report books and procedures updated to effectively minimise and remove such risks in a timely manner. By way of health warning these incidents will not be eradicated. However, if introduced these measures will ensure such businesses are better prepared for the fallout of such incidents.

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Sources Used When Writing This Article

[1] Chell v Tarmac & Lime Ltd – 24^th November 2021 – Court of Appeal - Chell (claimant/appellant) –v- Tarmac Cement & Lime Ltd (defendant/respondent) | Courts and Tribunals Judiciary

[2] Wilson, Chris – Chell v Tarmac – What are the implications? Ropewalk Chambers – CMS - 30-10-2020 - AL - Chell v Tarmac.pdf (ropewalk.co.uk)

[3] Morrisons v Various Claimants [2020] UKSC

[4] Mohamud v WM Morrison Supermarkets plc [2016] UKSC11

[5] Lister v Henley Hall Limited [2002] 1 AC 215

[6] Wilson v Exel UK Ltd t/a Exel (2010 SLT 671)

[7] Graham v Commercial Bodyworks Ltd [2015] EWCA Civ 47

[8] Weddall v Barchester Healthcare Ltd [2012] EWCA Civ 25

[9] Allison v London Underground Ltd [2008] EWCA Civ 71

[10] Section 69 Enterprise and Regulatory Reform 2013

[11] Lowery, Ted – Case in Focus: Chell vs Tarmac Cement and Lime Ltd – 21 December 2021 – Building - Case in focus: Chell vs Tarmac Cement and Lime Ltd | Comment | Building – Fenwick Elliott