The Principle of Horseplay and Vicarious Liability

In the recent case of Chell v Tarmac Cement and Lime Limited [2022], the Court of Appeal held that a finding of direct liability could not be imposed upon an employer for an ill judged act by an employee.
 
Facts
Mr Heath detonated two explosive pellets close to Mr Chell, causing injury to his hearing. This happened in the workplace, namely on the premises of Tarmac. Mr Chell therefore claimed that his employer was vicariously liable for this act and should be responsible for paying compensation. To support his argument, Mr Chell cited a history of friction between fitters employed directly by Tarmac, and others, who had been historically employed by another business – stating that rivalries had arisen and were well known within the business.
 
In that context, it was argued by Mr Chell that the incident, which had damaged his hearing, was closely connected with work and was therefore the responsibility of the employer. He therefore claimed compensation.
 
Law
There is a long history of cases on employers’ vicarious liability. Vicarious liability has two basic requirements:
 
1. A relationship between the employer and the individual who caused the injury; and
2. A connection between this relationship and the wrongdoer’s act.
 
The potential vicarious liability of an employer is relevant where an employee causes injury in the context of work, as it means that the employer must bear the burden of appropriate recompense.
 
Mr Chell considered there was a close enough connection between Mr Heath’s action and the work he undertook for Tarmac. The Court, however, disagreed, stating there was not a close enough connection. The Court drew an analogy between the employer’s potential liability and the expected subject matter of a risk assessment – horseplay, ill-discipline and malice are not matters usually included. Those are acts the employee must know are outside the behaviour expected in the workplace.
 
In making its decision, the Court pointed to the fact that:
·         the pellets had been brought into the workplace by Mr Heath;
·         Mr Heath had entered an area not usual for him to be working in; and
·         that there had been no outstanding complaint or grievance made by Mr Chell, regarding Mr Heath.
 
Comment
This case serves to highlight the importance of having appropriate policies and training in place, especially those that emphasise appropriate conduct in the workplace. If employees then engage in risky or unprofessional behavior, the employer can counter any suggestion that it is variously liable by pointing to such policies, to underpin that the employee was acting outside the bounds of accepted conduct.
 
If you would like advice from the Employment team at MLP Law in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK.