April Fools | Are employers liable for office horseplay and pranks gone wrong?
Written on 1 April 2022
We all like to have fun with our colleagues, and many of us will have pulled – or been on the receiving end of – an April Fools’ Day prank at work at some time or another.
From wrapping your co-worker’s computer screen in clingfilm to the classic ‘stapler in jelly’ trick – many workplace pranks are harmless and taken in good humour. However, while pranks can be a good way to let off steam and bond with the people we work with, some practical jokes and boisterous behaviour can invite real issues for employers, as well as have potentially serious health and safety consequences.
Over the years, numerous cases have highlighted how horseplay in the workplace can quickly get out of hand, and while most employers won’t desire to ban playful behaviour altogether, there are risks to consider.
What the law says
Employers have a responsibility to ensure all employees have access to a safe, respectful and harassment-free place to work.
From a health and safety perspective, although the Health and Safety at Work Act 1974 (HSWA) doesn’t specifically make reference to horseplay, it does state that employers have a duty to prevent a “reasonably foreseeable” risk of injury. This includes situations where the employer knows, or ought to know, that a particular employee is posing a risk to others.
In fact, while some might argue that the onus is on employees not to engage in potentially dangerous behaviour, employers can be held vicariously liable for injury caused to employees in cases where it can be proven that the employer was aware of the horseplay taking place but failed to take precautions against it or stop it from occurring.
In addition to criminal health and safety prosecutions, employers may face personal injury claims (civil claims) from victims of horseplay or pranks at work.
That’s not to say perpetrators get off scot-free. In fact, while the majority of the responsibility for creating a healthy and safe workplace rests with the employer, Section 7 of the HSWA also places a duty on employees to “take reasonable care for the health and safety of themselves and of other persons who may be affected by their acts or omissions at work”. This extends to co-operating with the employer to enable it to fulfil its legal duties and, thus, following workplace health and safety rules which will naturally warn against careless, risk-taking behaviour.
Further, Section 8 requires that “no person shall intentionally interfere or misuse anything provided in the interests of health, safety and welfare”. It’s easy to see how this could apply to pranks and other reckless behaviour. Individuals who fail to comply with these duties may be liable to prosecution.
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Not cut and dry
Because circumstances surrounding workplace horseplay will vary considerably from one case to the next, different cases have reached different conclusions.
In some, employers have been held vicariously liable for employees’ actions where it has been proven that the employer was aware of the horseplay taking place but didn’t intervene to prevent harm occurring.
For example, in the case of Hudson v Ridge Manufacturing Ltd, an employee suffered an injury to his wrist after a co-worker, who was known for playing practical jokes at work, forced him to the ground. The injured party brought a civil claim against the employer.
Here, the company was found to be vicariously liable on the basis that it had failed to put a stop to the prankster’s behaviour despite a string of similar incidents involving other employees. What’s more, it was determined that the offending employee was not a competent employee, contravening the employer’s duty to provide competent staff. To be considered competent, employees must have a positive attitude to health and safety at work and behave responsibly in the workplace.
Similarly, in a more recent criminal case, a waste management firm was fined in excess of £200,000 after an employee was fatally crushed by a motorised shovel. Described as “extended, terrible horseplay”, the investigation uncovered CCTV which showed that workers had to jump out of the way of vehicles and machinery being driven at somebody in a seated chair. The firm was not only prosecuted for the death but for “consistent disregard of worker safety on the premises over a 10-day period”.
Meanwhile, in the 2017 case of Patel v Homerton University Hospital NHS Foundation Trust, Central London County Court held that the employer was not liable for a hospital worker’s spinal injury which she sustained after a colleague pulled a chair from beneath her. While the claimant’s barrister argued that the perpetrator owed the claimant a duty of care as a fellow colleague, and that the hospital was indirectly liable, the court concluded that the prankster was acting “outside the scope of his work” and the incident in question was a “pure act of folly”.
The 2020 case of Chell v Tarmac Cement and Lime Ltd further suggests that it is becoming more difficult for employees to succeed in these types of claims. Here, as part of a practical joke, a site fitter brought ‘pellet targets’ to work and hit them with a hammer, causing a loud explosion which perforated a colleague’s eardrum. When determining whether the employer was liable, the judge considered whether there was a sufficient connection between the position in which the employee was employed and the wrongful conduct.
Ultimately, it found that horseplay, ill-discipline and malice are not matters that would be expected to be included within a risk assessment. Further, it was expecting too much of an employer to devise and implement a policy or site rules which descended to the level of horseplay or the playing of practical jokes. The existing site health and safety procedures, which included a section on general conduct stating that “no-one shall intentionally or recklessly misuse any equipment”, was sufficient given the multifarious ways in which employees could engage in horseplay.
Deterring dangerous behaviour
While not all pranks will result in successful prosecutions or claims, given the potential for them to result in real harm, employers must get on the front foot and take all reasonable steps to prevent unsafe behaviour.
Scott Crichton, Principal Health & Safety Consultant at WorkNest, says this could include coaching, awareness training, supervision, rewarding safe behaviours, and learning from incidents rather than blaming staff. “Health and safety culture plays a large part”, he says, “however, that is changed one conversation at a time, with one team at a time. It’s about building trust between colleagues and setting appropriate boundaries.”
“It’s also worth making employees aware that the prosecution of individuals does occur as a result of horseplay or practical jokes at work. This could act as a deterrent as it’s not just the business that is at risk of fines if things go too far”, he adds.
In addition to legal issues, fostering a culture where horseplay is accepted can be a slippery slope and could negatively impact the business and the team as a whole.
Scott says: “A culture of prank-pulling and risky behaviour could result in a lack of morale and trust amongst the workforce and incidents could contribute to high absence rates and staff turnover. Then there’s increased insurance costs, equipment damage, supply chain issues, and even reputational damage to think about – it could well be a recipe for disaster.”
He continues: “The behaviour of employees can be a very obvious indication of an organisation’s health and safety culture and allowing horseplay to become the norm could send the wrong message to employees and those looking in, as well as quickly erode your ability to enforce health and safety rules.”
Disciplining or dismissing offenders
So how should those who engage in these behaviours be dealt with?
From an employment law perspective, Jane Hallas, Head of Team and Solicitor at WorkNest, says horseplay and other office pranks could be potential gross misconduct, providing the employer’s disciplinary procedure makes it clear that causing harm or breaching health and safety rules could amount to such. Gross misconduct offenses could warrant instant dismissal without notice or pay in lieu of notice.
Similarly, if previous warnings have been given for more minor pranks which have caused upset are ignored, the employer could ultimately end up dismissing the employee as they have failed to heed the warnings.
She advises: “Employers should act quickly if they become aware of inappropriate horseplay or the targeting of an individual and, depending on the severity of the incident, follow their disciplinary procedure. Dismissal may be an option in the most severe cases; however, if the incident doesn’t constitute a significant health and safety breach and the reason for dismissal is more to do with the impact of horseplay on the employer’s reputation, then employers will need evidence to support their belief that their reputation has been damaged or the dismissal may be found to be unfair.”
This was the case in Taylor v Somerfield Stores Ltd, where a video of an employee being bashed over the head with a plastic bag full of other plastic bags, while wearing work uniform, ended up online.
Employers should also keep in mind that even seemingly harmless office pranks that don’t pose a risk of physical injury may still cause offence, and that this presents possible legal risks. The concept of vicarious liability also exists in employment law, and there have been a number of cases in the past where employees have discriminated against or harassed a colleague, and the employer has been held responsible.
Jane explains: “The risks of office pranks from an employment law perspective include claims for constructive unfair dismissal if the pranked employee resigns, perhaps citing bullying or a hostile working environment. Claims for harassment or discrimination could also arise if the employee is able to show that the harassment is due to a protected characteristic ,such as race, gender, sexuality, age or disability, and created a hostile working environment.
“These could give rise to claims where the cap is unlimited and injury to feelings awards can be high.”
Employers would be foolish not to take note.
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