In Chell v. Tarmac Cement and Lime Ltd , the High Court held that an employer was not negligent or vicariously liable for a contractor’s personal injury suffered in its workplace because of an employee’s practical joke. Employers cannot be expected to implement health and safety procedures that foresee the numerous possible scenarios in which employees can engage in practical jokes or to go beyond the obvious limits on general conduct to prevent employees intentionally or recklessly misusing equipment. Nor can employers be expected to increase supervision of employees to prevent them from engaging in horseplay.
The claimant, a contractor, worked alongside fitters employed directly by the defendant. Tensions arose between the claimant and two of the defendant’s employees, H and S. They thought their jobs were in danger and that they would be replaced by contractors. On the day of the incident, the claimant was working in the on-site workshop when he bent down to pick up a length of cut steel. H had brought two “pellet targets” with him on-site which he put on a bench close to the claimant’s right ear. H then hit them with a hammer causing a loud explosion. This was the (wholly misguided) practical joke. The claimant suffered a perforated right eardrum, noise-induced hearing loss and tinnitus. H was dismissed from his employment.
The High Court accepted that the contractor had previously made his supervisor aware that there were rising tensions between employees and contractors on-site. However, the court decided the risk of injury was not foreseeable as the situation was not such as to suggest the threat of violence or confrontation. Increased supervision to prevent horseplay, ill-discipline or malice was therefore not a reasonable step to expect this employer to have identified and taken.
The High Court followed the Supreme Court’s decision in Morrison Supermarkets plc v. Various Claimants  where it was held that an employer is not vicariously liable for a data protection breach committed by an employee. The court held that, although the incident happened in the workplace, the employer was not vicariously liable for the employee’s actions. Those actions were unconnected with any instruction given to the employee in connection with his work and did not in any way advance the purpose of his employer. The workplace merely provided the opportunity to carry out the prank, rather than it being within the employee’s work activities.
The judge held that it was too much to expect employers to implement policies to deal with horseplay or the playing of practical jokes. In this case, the existing site health and safety procedures, which included a section on general conduct stating “no one shall intentionally or recklessly misuse any equipment”, were sufficient given the numerous ways in which employees could engage in ill-discipline. It was not reasonable to expect the employer in this case to have increased supervision in the circumstances.
This case highlights an instance where an employer was not held to have been negligent or liable due to the actions of an employee. To be liable there must be a sufficiently strong connection between the employer, the employee and the activity which gave rise to the incident – in this case, the act of striking two pellet targets with a hammer close to the claimant’s ear. In other words, an employer will usually only be liable for the actions of an employee where, at the employer’s direction, the employee was tasked to act and, in some way connected with doing so, the employee causes injury to another.