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Vicarious Liability: Employer not liable for injury caused by practical joke in the workplace

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Case Update – Employer not liable for injury caused by practical joke in the workplace (Court of Appeal)

In the case of Chell v Tarmac Cement and Lime Limited, [2022] EWCA Civ 7 (12 January 2022) the Court of Appeal considered whether an employer was responsible for a serious injury sustained by a third-party contractor, caused by a practical joke of one of its employees.

Background

Tarmac engaged Mr Chell at a quarry site. Mr Chell had reported tension between external contractors and employees of Tarmac to his supervisor. Subsequently, an employee of Tarmac played a prank on Mr Chell. He brought explosive pellets into work and hit them with a hammer proximate to Mr Chell’s ear. The explosion resulted in Mr Chell suffering a perforated eardrum, hearing loss and tinnitus. Mr Chell unsuccessfully claimed damages for personal injury from Tarmac in the County Court, arguing that it was vicariously liable for its employee’s actions, and directly liable for breaching its own duty of care and failing to provide a safe working environment. The High Court upheld the County Court decision. Mr Chell appealed to the Court of Appeal. Dismissing the appeal, the Court of Appeal confirmed that there was not a sufficiently close connection between the act which caused the injury and the employee’s work to make it fair, just and reasonable to impose vicarious liability. Among other things, the real cause of Mr Chell’s injuries was the explosive pellet, which was not Tarmac’s equipment and not used in the employee’s work. It could not be said that Tarmac authorised what the employee did, nor was his act an unlawful mode of doing something authorised by Tarmac. The wrongful acts were not done in the course of employment. Regarding breach of duty of care, there was no reasonably foreseeable risk of injury arising from the prank and the reported tension did not suggest potential violence. Even if such a risk of injury had been established, it would be unreasonable and unrealistic to expect an employer to have in place a system to ensure employees refrained from horseplay. Employees were expected to carry out their tasks using reasonable skill and care, and by implication to refrain from horseplay. Common sense decreed that horseplay was inappropriate at a working site.

Comment

Vicarious liability is when the employer is held legally responsible for the acts/omissions of its staff is causing damage or injury. There have been a number of cases recently on vicarious liability and it is clear that the courts are taking a firm line on what liability an employer has for the actions of its employees/contractors. It is not enough to say that they were given the opportunity to do so because of their employment. Where those actions are committed during the course of a claimant’s employment but it is not reasonable for that kind of action to have been taken into account in a risk assessment then the claim will likely fail. Another example can be found in the case of Mohamud v WM Morrison Supermarkets 2016. In this case, Mr Mohamud visited a petrol station owned by Morrisons where he was racially abused and assaulted by an employee of the Company. At first glance it might not be obvious why the Court of Appeal found against Mr Chell, when it was decided in the Mohamud case that Morrisons were liable for assault caused by its employee on a customer. The difference between the two cases is that, Mr Mohamud assaulted a customer during the course of his normal duties: namely, serving a customer. Whereas in the Chell case, Mr Chell was assaulted during the course of a practical joke, outside of the normal activities of the wrongdoer in question. The Judgment serves to re-enforce the general principle that an employer will only be vicariously liable for the actions of their employee when the wrongful conduct is closely connected with acts the employee was authorised to do. Anton Bilinski has many years’ experience representing Claimants in relation to various claims for personal injury, including those against employers. Anton can also advise whether an employer may be vicarious liable. Working with Jennifer Carpenter, Partner, employment law advice can be given about these circumstances. For employers it is always a good idea to have a clause in an employment contract making it clear that the employee will not commit unlawful acts or engage in any inappropriate behaviour whether meant in jest or otherwise. Whether you are an employer or employee contact us for advice at enquiries@adams-harrison.co.uk

Cuts to sick pay for unvaccinated employees

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You may have seen in the media that some large organisations, like Ikea, Next and some Water authorities have amended their sickness absence policies to state that those employees that have to self-isolate as a result of being unvaccinated and a close contact of a positive Covid-19 case will not receive pay. Self-isolation is only a requirement currently following close contact if someone has not received two vaccinations and is not clinically exempt from vaccination. Ikea do have “special mitigating” circumstances in their policy as to when they would allow sick pay.

These organisations are still paying sick pay if an unvaccinated employee contracts Covid-19 and is absent from the work place.

Despite this, these decisions do however, have the potential for discrimination or breach of contract claims by the affected employee. We will have to see if any claims are brought as a result.

We can advise and represent employees and employers in relation to employment related unlawful discrimination.

Contact enquiries@adams-harrison.co.uk to arrange a consultation with Jennifer Carpenter, our solicitor and managing partner who has 20 plus years’ experience of practicing employment law.

Calls For Long Covid To Be Recognised As A Disability

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The Trade Union Congress (TUC) has called for long Covid to be recognised as a disability and for Covid-19 to be classified as an occupational disease, a move that would grant legislative protections and access to compensation for workers.

A TUC report demonstrated that 5% of those questioned revealed that they had lost their jobs as a result of the impacts of long COVID.

Under the Equality Act 2010 it is unlawful discrimination to treat an employee or worker less favourably due to a “protected characteristic”. Disability is a named protected characteristic under the Act. Some conditions and diseases are automatically deemed by legislation to amount to a disability, including cancer, multiple sclerosis and blindness. Other conditions can be regarded as a disability, and therefore afforded the protection of the Equality Act 2010, but only if the definition in section 6 of the Equality Act 2010 is made out. This poses four essential questions:-

  • Does the person have a physical or mental impairment?
  • Does that impairment have an adverse effect on their ability to carry out normal day to day activities?
  • Is that effect substantial?
  • Is that effect long-term?

It is necessary to carefully analyse each question and support it with medical evidence. It is entirely possible that a person with long Covid could satisfy the above requirements. But it would give individuals with the condition much greater protection if it was one of the conditions deemed to be a disability, like cancer. The hoops in section 6 would then not have to be gone through.

There are various ways in which an employer can unlawfully discriminate as a result of a person’s disability. This protects workers, employees and job applicants:-

Direct disability discrimination: being treating less favourably than others because of a disability.
Discrimination arising from a disability: treating someone unfavourably because of something arising in consequence of disability without objective justification.

Indirect disability discrimination: Applying a provision, criterion or practice that disadvantages someone with a disability without objective justification.

Reasonable adjustments: Failing to comply with the duty to make reasonable adjustments where a person with a disability is placed at a substantial disadvantage.

Harassment: subjecting someone to harassment related to disability.

Victimisation: Victimising someone because they have made or intend to make a disability discrimination complaint, or because they have done or intend to do other things in connection with the Equality Act 2010.

For detailed advice on all types of discrimination and related claims please contact our employment specialist, Jennifer Carpenter, solicitor and partner.

10 Facts About Furlough Leave

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The Government’s Coronavirus Job Retention Scheme (CJRS) has been extended to the end of September 2021. However, from 1st July 2021, employers can only reclaim up to 70% of wages for hours not worked (up to the cap of £2,187.50 a month). Nevertheless, the employer must continue to pay at least 80% of the employee’s wages (up to the cap of £2,500 a month) for any furloughed hours. Therefore, from the start of next month employers will have to contribute 10% (up to the cap of £312.50 a month). It is optional whether an employer chooses to top up an employees’ wages above the 80%, but this cannot be reclaimed.

Did you know …

  1. There is no minimum period of furlough leave.
  2. Employees, directors and workers can be included in the Scheme.
  3. Decisions made by an employer as to who should be furloughed can amount to unlawful discrimination if the selection is based on any “protected characteristic” under the Equality Act 2010 (e.g. age, sex, race, religion, disability).
  4. Any reduction in pay whilst on furlough must be agreed with the employee, otherwise it amounts to a breach of contract.
  5. Holiday entitlement will continue to accrue for an employee during furlough leave.
  6. An employer can force an employee to use holiday entitlement whilst on furlough leave.
  7. Employers can carry out a redundancy consultation with employees whilst they are on furlough leave.
  8. Employees can be made redundant whilst on furlough leave, or at the end of furlough leave.
  9. If an employee receives a payment in lieu of their notice entitlement upon termination of their employment the CJRS cannot be used to help pay this.
  10. For the purpose of calculating an employee’s entitlement to various statutory payments, including redundancy pay, this must be with reference to their normal pay, not the pay received whilst on furlough leave.

For more detailed advice, whether you are an employee, worker or employer please consult with our employment specialist – Jennifer Carpenter, solicitor and managing partner.

 

The Impact Of School Closures On Working Parents

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Lockdown III has resulted in the further closure of schools in the country with effect from 5th January 2021. Schools remain open for children of parents/carers with a job or career deemed to be “critical” in the Government’s guidance; or for some children that are vulnerable; or, most recently added is the category for those students unable to learn from home due to a lack of IT resource. The impact of school closures is huge on working families, in particular working mothers.

What can you do if you cannot work because your child(ren) are not at school?

1. There is no right to request, or to receive, furlough leave. However, the Government has confirmed that the Coronavirus Job Retention Scheme (CJRS), that contributes to the pay for furloughed employees/workers, can be used for caring responsibilities. It is the employer’s decision though. If it is offered by the employer it can only be implemented with the employee/worker’s consent. The employer is not obliged to make up the pay to a full 100% and therefore it means a reduction in pay to 80%. The CJRS has now been extended until the end of April and can be used flexibly so the employee/worker does not have to be on furlough leave for all of their contracted hours.

2. There is a statutory right to Parental Leave – up to 18 weeks leave per child can be taken by some working parents before the child is 18 years old. However, this is unpaid leave.

3. Annual leave can be used but most employers have a limit on the amount of annual leave that can be taken consecutively and it is always subject to the employer’s approval.

4. A change in shift pattern or working arrangement – an employer cannot force you to work on a different day or time. However, if you have caring responsibilities for a child (and you have worked for at least 26 weeks for your employer) you can make a flexible working request to change your contractual hours of work. An employer can only refuse this request for prescribed reasons as set out in section 80G(1)(b) of the Employment Rights Act 1996:

• The burden of additional costs
• Detrimental effect of ability to meet customer demand
• Inability to reorganize work among existing staff
• Inability to recruit additional staff
• Detrimental impact on quality
• Detrimental impact on performance
• Insufficiency of work during the periods the employee proposes to work
• Planned structural changes

5. Termination of Employment – you can resign from your employment. Your employer can only dismiss you if it is for one of five permitted fair reasons as set out under the Employment Rights Act 1996 – incapability, misconduct, redundancy, illegality of some other substantial reason.

Questions have been raised in parliament this month suggesting that there should be a legal and enforceable right for parents to request paid, flexible furlough. This comes after a survey of 50,0000 women in the UK suggested that 71% of working mothers who asked to be furloughed for childcare reasons following the closure of schools this month had their requests refused. However, this change has not been implemented.

The above is a very brief summary of the employment law position arising as a result of school closures. Please seek our specific advice so that it is applicable to your own individual circumstances. Remote appointments by various means are available with our employment law specialist Jennifer Carpenter, solicitor and managing partner.

Please telephone the office on 01799 523441 or e-mail enquiries@adams-harrison.co.uk.

What Happens When The Furlough Scheme Ends?

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The Five Rs

The Coronavirus Job Retention Scheme (CJRS) was introduced in March by the Government to enable organisations to keep staff on payroll and not make them redundant but send them home. It served two purposes – ensuring people stayed at home at the height of the Covid-19 pandemic, whilst enabling people to keep their jobs. As it is fundamental to the employment relationship that the employer provides work and the employee undertakes work in order to avoid a breach of contact, the furlough period could only be put in place with the employee’s express agreement. “Furlough”, prior to March was not a term that had ever been used in relation to employment contracts/relationships.

Employers are now contributing to the scheme but with the Government still contributing 70%. In October employers will be contributing 20%. The Chancellor has made it clear there will be no further extensions to the scheme. It will end on 31st October.

So, what happens to the millions of people on furlough on 1st November:-

RETURN TO WORK – the ideal would be that the staff member returns to their job and full pay. There is no specified notice period that should be given to an employee that they are required to return, unless something specific was agreed at the start of the furlough leave.

REDUCTION IN HOURS/PAY – this can only happen if the staff member agrees to this. An employer cannot force a reduction in hours or pay. Some employees may be willing to agree to this to avoid losing their job.

REDUNDANCY – if the employer has become insolvent then there will be a redundancy situation. If the employer cannot afford to pay redundancy then the Government National Insurance Fund scheme may be able to assist employees. Employees will only be eligible for statutory redundancy pay if they have at least two years continuous employment. Redundancy pay should be calculated in accordance with the employee’s full pay, not any reduced pay whilst on furlough. If the employer no longer has a need, or has a reduced need for employees of a particular kind, this will fulfil one of the statutory definitions of redundancy. How the employer consults and selects those identified for redundancy will determine whether a dismissal for redundancy is fair in accordance with the Employment Rights Act 1996.

REMAIN AT HOME – the employer could discuss with staff the idea of working from home to assist with social distancing in the workplace. An employee cannot be forced to work from home if their contract of employment provides for a different place of work.

REFUSE TO RETURN – if an employee refuses to come back to work the employer will need to address the reason for the refusal and possibly address any concerns that mean the employee will not/cannot return, including if they are vulnerable and have worries about Covid-19 transmission.

If the employee is not invited back to work and/or is kept on reduced pay then this is likely to amount to breach of contract and potentially a constructive unfair dismissal.

Time is running out. If a genuine redundancy situation arises then the employer must still give notice that the employment is ending for this reason. The contract may dictate the notice period, but statutory minimum notice periods will apply in that one week’s notice for each complete year of service must be given, up to a maximum of 12 weeks.

If an organisation plans to make more than 20 staff redundant there must be a minimum consultation period before any notice of termination is given of at least 30 days.

It is going to be a difficult time for employees and employers so we are here to give the legal advice to guide you through it.

Contact Jennifer Carpenter, solicitor and partner with 20 plus years of providing employment law advice and representation to employees and employers.

Furlough Leave Update Information

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All employers and organisations please be aware that in order to qualify for the subsidy from the Government’s Coronavirus Job Retention Scheme all employees/workers furloughed must have been given written instruction that they cannot do any work for the organisation that has placed them on furlough, and have consented to this in writing. This is contained in the Treasury Guidance to HMRC dated 15th April 2020.

The scheme has very recently been extended until the end of June.

For all your furlough leave questions answered, whether you are employer or employee, please contact our employment specialist Jennifer Carpenter, Solicitor and Managing Partner.

Some FAQs About Furlough Answered

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Some FAQs about furlough, answered by employment law specialist, Jenny Carpenter, Solicitor.

Do you have to be employed to be placed on furlough leave?

No, the Coronavirus Job Retention Scheme applies to the self employed, contractors and zero hour workers.

Can furlough leave be used for those shielding at home from Covid-19 as they are in the vulnerable group of individuals?

Yes, the Scheme Guidance makes it clear that those that are shielding in line with public health guidance can be placed on furlough leave by their employer. However, this is only the case if the employee cannot work from home and would otherwise be made redundant.

Can a worker/employee with caring responsibilities be placed on furlough leave?

Yes, if for example an employee is unable to work because there is no child care provision (particularly relevant as schools are closed) then they can volunteer for furlough leave. However, an employer is not obliged to place an employee/worker on furlough.

Can apprentices be placed on furlough leave?

Yes, and they can continue with training during this time, but not work.

Can a furloughed worker/employee undertake voluntary work whilst on furlough leave?

Yes. But not for the organisation that has placed them on furlough leave.

Can paid work be done by a worker/employee on furlough leave?

This depends. Paid work cannot be done for the organisation that placed them on furlough. However, if the worker/employee’s contract of employment permits them to have more than one job then there is no reason why they cannot take up paid work elsewhere.

Can a Nanny be placed on furlough leave?

Yes, the Guidance makes it clear that those employed by individuals can be placed on furlough. However, they must be paid through PAYE payroll and have been on the payroll as at 28th February 2020.

Can a director of a company be placed on furlough leave?

Yes, provided the decision is made by the Board of Directors and documented. It does of course mean that the director cannot then do any work for or on behalf of the Company during the period of furlough. The director can though carry out his/her statutory obligations under the Company Act 2006.

Employment Law Terms Explained

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As a result of the Coronavirus pandemic we are experiencing unprecedented employment circumstances and lots of different terms are being used to describe a worker/employee’s situation:-

Laying off

The employer provides the employee with no work, nor pay for a undefined period, but retains them as an employee.

Short time working

The employer provides less work (normally less hours of work) for less pay but retains the employee.
An employer should only impose one of the above if the contract of employment makes full provision for this, otherwise the employee would have a claim for breach of contract.
In certain circumstances where an employee is put on short time working or lay off they become entitled to claim a statutory redundancy payment. This is only where the employee has at least two years continuous employment with the employer and the statutory scheme for claiming redundancy pay is followed.
To be able to claim the employee must have been laid off or kept on short-time working (or a combination of both) for at least four or more consecutive weeks; or a total of six weeks (of which no more than three are consecutive) in any period of 13 weeks.

Redundancy

A potentially fair reason to dismiss under the Employment Rights Act 1996, either due to:-

  1. A place of work closure
  2. A company/business closure
  3. There no longer being a need, or there is a reduced for employees of a particular kind.

It is worth noting, however that notice must still be given to the employee that the employment is to be terminated.

Furlough leave

With the worker/employee’s consent they agree to go on paid leave for a minimum period of three weeks whereby they do not undertake any work and are retained as an employee. The employer can utilise the Government Retention Scheme and recoup up to 80% of staff wage costs via HMRC. The employer is not obliged to pay 100% of pay during furlough leave. Forcing an employee to be furloughed would amount to breach of contract. Therefore, it can only be done with the employee’s express consent.
There is no right to request furlough leave, nor any right to request redundancy as an alternative.

For advice as an employee or employer our employment law specialist solicitor Jennifer Carpenter is available at j.carpenter@adams-harrison.co.uk.

Employment Law Changes – Are You Ready?

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From 6th April 2020 all new employees, but also workers/joiners to a company, will have the right to a written statement of terms on or before the first day of employment, whereas it is currently for employees only and within two months of employment starting. This change has been brought about by an amendment to the Employment Rights Act 1996 as a result of the introduction of The Employment Rights (Employment Particulars and Paid Annual Leave)(Amendment) Regulations 2018.

Do you know what needs to be included in a written statement of terms? It does not necessarily have to be a formal contract of employment but there is prescribed information that must be provided, much sooner than previously and now to workers as well as employees.

There is a right for employees and workers to bring Employment Tribunal claims if the organisation engaging them fails to do this.

The Government has said that the intention is to ensure that workers can access fair and decent work, that both employers and workers have clarity on the employment relationship, and that the enforcement system is fair and fit for purpose. Above all, the direction of travel is to protect vulnerable workers and improve workers’ understanding of their rights.

The best way to ensure compliance is to have a properly drafted contract of employment that is ready to pass to a worker or employee at the latest on the day they start work. If you ask us to prepare the contract we can include all the requirements and information that an employer is obliged to give. The new Regulations include additional information that must now be provided. For example, probationary period details and days of the week worked must be provided for those starting work after 6th April.

There is information that the Regulations state the employer can choose whether to put in the main written statement of terms (contract) or in “reasonably accessible document(s)” but the following information must be provided:-

  • Terms for absence due to incapacity and sickness and the position regarding sick pay.
  • The notice periods for termination.
  • Information relating to grievances and disciplinary.
  • Terms relating to pensions and pension schemes.

Even if there is not a legal requirement to contain certain information in the written statement of terms it may be advisable to have additional terms to protect your business, for example post termination restrictions.

Contact us to arrange an appointment with Jenny Carpenter, specialist employment solicitor and partner to discuss your requirements.