Are Employers Responsible for the Irresponsible Acts of their Staff?

Whilst reading up on the outcome of the recent Chell v Tarmac Cement and Lime Ltd case I decided that vicarious liability may be an interesting topic for this week’s blog.

As you may be aware, generally employers are vicariously liable for the acts of their employees whilst at work, but it is not a given that this will be the case. Sometimes it is found that an employer should not be liable and that was the outcome in the Chell case described below.

The boundary between what is work related and what is not, and what the employer is responsible or liable for seems to be a very fine line. The way in which a tribunal or court will make their judgement depends on the degree to which there is a close connection between the employment relationship and the wrongful act. If the connection is vague or distant they will find in the employer’s favour.

Reassuringly it has often been found that just because an incident has taken place at work that does not mean an employer will necessarily be vicariously liable for any damage, injuries or harm that resulted.

Chell v Tarmac Cement and Lime Ltd

In the Chell case, Mr Chell was a contractor who had a difficult relationship with a Tarmac employee. One day the employee played a practical joke on Mr Chell and placed two “pellet targets” in a particular area waiting for Mr Chell to bend down and place his head there. When he did the employee hit the pellet targets with a hammer causing a very loud bang that perforated Mr Chell’s eardrum plus other injuries.

Whereas the injury was caused by an employee, at work, the court found that there was not a close enough connection between the employee’s work and his actions for Tarmac to be held liable for the injuries.

Mr Chell had claimed that Tarmac had been negligent and breached its duty of care to him by failing to provide a safe working environment and was therefore vicariously liable for the actions of the employee.

However, the court found that the employee’s actions in hitting the pellet targets were not ‘within the field of activities assigned to him by Tarmac’, whose case was significantly strengthened by having carried out risk assessments of the work, had good policies in place and had trained employees in Health & Safety. The employee was dismissed for his actions.

This case reinforces how important it is to have clear policies and procedures in place to support your defence in a legal liability claim e.g. as part of an employee handbook.

At 186hr we can build an Employee Handbook for you from £500 plus vat.  We have numerous model policies for you to either adopt as they are or adapt to your specific circumstances. Please contact us for further details.

I researched similar recent cases to try and understand where the line is between an employer being liable or not for the actions of its employees.

Majrowski v Guys and St Thomas’s NHS Trust

In Majrowski v Guys and St Thomas’s NHS Trust, Mr Majrowski claimed he had been bullied at work by his departmental manager over a period of time. The bullying consisted of excessive criticism, rude and abusive behaviour, unrealistic performance targets and threats of disciplinary action. He brought a civil claim, arguing that his employer should be held vicariously liable for his manager’s conduct under the Protection from Harassment Act.

He won the case. The court decided that the key criterion for an employer to be liable under the Act for harassment perpetrated by one of its employees is that the offending conduct must have a “sufficiently close connection” with the employee’s employment. That was shown to be the case as all the relevant incidents had taken place in the course of employment. The manager in question had not had sufficient training.

Weddall v Barchester Healthcare Ltd

In Weddall v Barchester Healthcare Ltd, Weddell was a supervisor at a care home. One of his team had not turned up for work so he called the employee, who seemed to be drunk. The employee took offence at how Mr Weddall talked to him on the phone and then cycled to work and violently assaulted him.

In this case the Court decided that the employee assaulting Mr Weddall at the care home 20 minutes after the conversation was independent of work, and hence the assault was ‘not connected with employment’ i.e. Barchester were not liable even though the assault happened at the workplace.

Muhamed v Morrisons

Similarly, in Muhamed v Morrisons, Mr Muhamed had entered a Morrisons petrol kiosk and asked an employee, Mr Kahn, to print off some documents from a USB stick. Kahn verbally abused Muhamed, using racist language, and then followed him outside on to the forecourt and kicked and punched him.

The court found that the connection between the assault and Kahn’s employment was ‘not sufficiently close’ to enable Muhamed to recover damages from Morrisons.

So it seemed that a clear distinction was emerging regarding when an employer may be liable i.e. that an employer may be held liable for poor management practice but not assault, presumably unless there had been previous violent behaviour.

Wallbank v Wallbank Fox Designs

However, in another case involving assault, Wallbank v Wallbank Fox Designs, the assault against Wallbank almost immediately followed a work instruction from him to a subordinate and was found to be a ‘direct response to the work instruction’ and therefore the court found that the employer was vicariously liable.

These cases involving assault highlight just how hard it is to judge liability. Most employers would not employ somebody they felt may assault colleagues or members of the public and find such behaviour completely unacceptable, so to find them vicariously liable for an unpredictable event like that seems harsh.

My conclusion is that it is not possible to definitively advise what an employer will be liable for. All you can do is ensure you have the best case possible should you need to defend the company’s actions. This means having robust processes and procedures in place, training your staff not just in how to do the job but also the behavioural standards you expect e.g. training managers on how to manage people effectively but fairly and training all staff in behavioural issues such as discrimination, bullying and harassment.

Clearly employers should also ensure they have both employer and public liability insurance just in case.

There is better news for employers faced with a liability claim for discrimination though. The Equality Act 2010 provides the employer with a defence if it can show that it took ‘all reasonable steps to prevent that employee from discriminating’. Such steps will usually involve training employees in equal opportunities, having a clear policy, and making it clear to staff that discriminatory practices will not be tolerated. It is also important to ensure all allegations of discrimination are investigated and appropriate action taken even where no formal complaint has been made. A track record of not investigating previous acts of discrimination or harassment may seriously harm your defence!

186hr’s most popular course, ‘Dignity and Respect in the Workplace’ covers this issue. We train employees where the ‘bar’ is regarding behaviour at work, especially regarding banter. The course is designed to improve workplace culture and also help employers avoid discrimination claims being made against them. If this is of interest let us know and we will be happy to discuss the course further with you. We can either run virtual training sessions or, when allowed we can run actual physical courses for you. Remember them?

Moving on to staff social events, sadly there will have been all too few of these this year. But what people often don’t realise is that even though you may feel that things that happen on a Christmas party or other work social occasion are unlikely to be deemed to be ‘in pursuit of the business of the employer’, that is generally incorrect. Usually the employer would be liable for the actions of their employees towards other employees, staff at the venue, and even the general public where the event was arranged by the employer, especially where the employer pays for it and even more so if they arrange a free bar.

This doesn’t mean that employers should stop arranging such events as they are an important part of the employment relationship. We would advise that you communicate beforehand and remind employees of their responsibilities, and that work events are still classed as work so the normal policies and procedures still apply.

I am reminded of when I worked for Advent Data Ltd, a small company in West Yorkshire. The directors, Raj and Robert always laid on a fabulous Christmas party with all drinks and food paid for by the company.  Clearly that was a risk for them and so each year on the afternoon of the party I would send an email round reminding employees to consume only a reasonable amount and remember they were representing the company etc. Over time my email became the starting pistol for the team to get excited about the evening and a great cheer would go round the company when my email landed in their inboxes. Hearing it always made me smile as I sat in my office fretting about who would embarrass themselves this year, and praying it was not me!

So clearly therefore, events organised by the employer are normally classed as work and the company is likely to be liable for the actions of their employees, especially if they have bought alcohol for them. But what about where colleagues get together having arranged it themselves with no input from the employer?

Surprisingly there weren’t any such cases I felt were interesting enough to include in this blog, although an employment judge did give useful clarification in one of the cases I read about. He gave an example of some junior and managerial colleagues playing a round of golf together at the weekend, arranged and paid for by themselves.

He explained that where work is spoken about and there is disagreement between them, or worse, it would not normally lead to the employer being vicariously liable where all participants are voluntary and attending as equals even though they only know each other because they work together.

However, if the issue occurred when a manager had ‘engaged their managerial role and expressed their authority’ during the incident then this would engage their workplace roles and is likely to be classed as work related.

I hope this provides some clarification.

Employers who arrange social events, or are aware that staff arrange these themselves, are advised to send a note to staff that their attendance at these events is voluntary; participants will be treated, and choose to attend, on an equal basis; and that discussions regarding work, or activities related to work activities, are strongly discouraged.

You may also wish to devise or update your policy on work related social events and the behaviours expected whilst attending them.

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We also offer a more detailed guide, the Practical Guide to Making Redundancies, which explains all your legal requirements and provides you with a model redundancy policy from CIPD to adapt to your company if you need it.