In the case, Chell v Tarmac Cement and Lime Ltd, Mr Heath and Mr Chell both worked on the same site operated by Tarmac. Mr Heath was employed by Tarmac and Mr Chell was a contractor supplied by a third party. Mr Heath, as part of a practical joke, hit two 'pellet targets' with a hammer causing an explosion by Mr Chell's ear. Mr Heath was dismissed by Tarmac following the incident which caused Mr Chell to suffer a perforated ear drum, hearing loss and tinnitus.
Mr Chell brought a personal injury claim against Tarmac.
The High Court upheld the County Court decision that Tarmac was not liable for the consequences of Mr Heath's practical joke. The court held that there was not a sufficiently close connection between Mr Heath's employment and his actions and that it is not reasonable to expect an employer to implement health and safety policies that foresee and combat horseplay or practical jokes.
The 'target pellets' were not work equipment and had been brought to the site by Mr Heath specifically to carry out the practical joke, rather than for any work use. Additionally, Mr Heath was supposed to be working on another job in another part of the site and should not have been in the vicinity of Mr Chell at the time of the prank. The Court found that "work merely provided an opportunity to carry out the prank that he played, rather than the prank in any sense being in the field of activities that Tarmac had assigned to Mr Heath."
The decision follows the approach of the recent Supreme Court case, which we previously reported, where supermarket chain Morrisons was not vicariously liable for its employee's malicious data breach. In the Morrisons case, the Supreme Court emphasised that there must be a sufficiently close connection between the employee's work and the employee's wrongdoing for the employer to be vicariously liable.
All claims of this sort will turn on their particular facts. However, cases such as this are useful illustrations of how the courts will interpret the 'sufficiently close connection' test.
In the written judgment, it is noted that practical jokes in the workplace can amount to a form of bullying. Employers should ensure that they have appropriate policies in place to deal with workplace bullying and harassment.