With April Fool’s Day just around the corner, it’s worth considering the risks of playing a practical joke or prank in the workplace.
In a recent case (Chell v Tarmac Cement and Lime Ltd), the High Court held that an employer was not negligent or vicariously liable for the actions of an employee whose practical joke unintentionally caused injury to a contractor at work. The employee placed pellet targets on a bench close to the contractor’s ear, and hit them with a hammer. This caused a loud explosion which resulted in the contractor suffering a perforated ear drum, noise-induced hearing loss and tinnitus.
The Court in this case held that it was expecting too much of an employer to devise and implement a health and safety policy (or any other policy), which covered horseplay or practical jokes. It was held that there was no foreseeable risk of injury as tensions between the employees and contractors on site were not so serious as to suggest the threat of violence or confrontation. The employer was not vicariously liable because the actions of the employee were held to be unconnected with any instruction given to the employee in connection with his work and did not in any way advance the purpose of the employer. The workplace merely provided the opportunity to carry out the prank, rather than it being within the employee’s work activities.
This is a positive outcome for employers as this case indicates that they are unlikely to be held vicariously liable where someone has been injured at work as a result of a practical joke. However, it is still advisable that if an employer becomes aware of circumstances that may result in pranks or physical violence in the workplace, they take steps to prevent it from happening.
It is also worth bearing in mind that an employer can be vicariously liable for acts of discrimination, harassment or victimisation committed by an employee in the course of employment. Harassment occurs when an employee engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either violating another person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment. So if any prank or joke in the workplace is connected to a protected characteristic (such as sex, race, disability, age, sexual orientation, gender reassignment or religion or belief) then there is a risk that the employer could be liable for the actions of their employees. There is a defence available to an employer if it can show that it took “all reasonable steps” to prevent the employee from doing the discriminatory act or from doing anything of that description but this is notoriously difficult to prove.
Therefore, if the employer feels that pranks or practical jokes in the workplace could be an issue on April’s Fools Day then it is worth issuing a statement to employees setting out that, while the company doesn’t want to ban fun in the workplace, often what is seen as fun or just harmless banter by some people is not seen as fun or harmless by others. In addition, some pranks have the potential to cause injury and health and safety issues. Therefore, the employer should warn employees to be sensitive to others and not carry out any pranks or practical jokes in the workplace.
Employers should also make sure that they have an equality policy in place and regularly train employees and managers in equality and diversity issues. We offer line manager training on equality and diversity and have a course coming up on 21 April if you would like to book a place.
If you have any concerns around this topic please contact a member of the Employment team.