A steer from the courts on vicarious liability

Most people enjoy a laugh, but practical jokes are best avoided in the workplace. From a legal point of view, they carry risk of vicarious liability for the employer if things go wrong and somebody is hurt. A recent case involving a practical joke on a construction site helps to demonstrate the issues and where a line may be drawn.

The incident took place on a site operated by a construction firm. One employee brought two “pellet targets” to work and placed them near the ear of a contractor working on the site.  The perpetrator then hit the targets with a hammer, causing an explosion.

The victim suffered a perforated eardrum and long-term hearing loss. The culprit was quickly sacked, but the victim decided to bring proceedings against the company. He alleged that it had breached its duty of care and was vicariously liable for the perpetrator’s actions.

During County Court proceedings, the victim claimed that he had previously informed the company of tensions between employees on the site. He argued that the company should have separated the employees before the incident could occur. He also alleged that it failed to provide adequate training or supervision to prevent practical jokes.

The company argued that the practical joke was completely outside the remit of the perpetrator’s employment, and therefore impossible to foresee as part of a risk assessment.

The court was sympathetic to the victim, but ultimately sided with the employer. The judge concluded that the workplace had “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 the company had assigned…”. He added that  the perpetrator’s actions were so clearly unacceptable that the company could not have been expected to warn him against them. The victim took the case to the Court of Appeal but the original verdict was upheld.

As an employer, vicarious liability is a worrying concept. Some relief can be taken from this example and at least one other recent court case which ruled against vicarious liability where, among other factors, the employee was not acting to further the employer’s interests or under instruction.

That said, the clearer you are about what constitutes unacceptable behaviour and the more controls put in place, the less likely an incident is to occur.

Workplace fatality statistics

Every year we study the HSE’s workplace fatality statistics with interest. This year’s numbers are encouraging, but you should be wary of reading too much into them.

The latest report shows that 111 workers died in workplace accidents between July 2019 and July 2020. This is 38 fewer than the previous year, making it the lowest annual number on record.

With many workplaces shut down for several months, you would expect fatality numbers to fall. That said, deaths in the months before the pandemic were slightly down from the previous year. This suggests that safety is still improving, although perhaps not as quickly as the figures initially seemed to show.

Every workplace fatality is a tragedy and has far-reaching consequences. For example, earlier this year, a transport company was fined £5,000 (limited due to liquidation) after a driver was crushed to death by a pallet of stone tiles. The company was found to have exceeded the pallet weight limit by 400kg, and had failed to provide the driver with proper training. As well as the human cost, the company went into liquidation.

We all want to help drive the numbers down further. If you have had any near misses and need external H&S consultancy, contact our team.

Protecting staff from abuse by customers

If you work in a customer-facing business, you’ll be well aware that 2020 has been a challenging year. From long queues and panic buying to the ongoing implementation of social distancing guidelines, retail workers have had a lot to deal with.

Sadly, the public has not always been supportive. A recent survey of the UK’s top 100 retailers found that a third had experienced customer abuse during the pandemic. This rose to 70% for food and grocery retailers.

The November lockdown has forced consumers to leave their Christmas shopping until December, so busy stores and frayed tempers are likely. This makes it more important than ever to ensure the safety of your employees.

If you haven’t reviewed your risk assessment for work-related violence recently, now might be a good time to do so. By identifying the situations where staff are most vulnerable to customer abuse, you can introduce precautions to keep them out of harm’s way.

Do I need to report COVID-19 cases under RIDDOR?

As you probably already know, RIDDOR (The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013) is the law requiring you to report serious injuries and deaths in the workplace. But how does this relate to COVID-19?

You are not required to report infections or deaths of members of the public who have entered your premises. RIDDOR only applies to occupational exposure. So reportable infections or deaths must be the direct result of an incident at work. These fall into three categories:

First, the virus has been, or may have been, released into the workplace as a result of an incident or accident. This must be reported as a dangerous occurrence. In these cases, it is not necessary to carry out any tests or analysis. It only requires a reasonable judgement that the incident caused actual or potential exposure.

Second, an employee has tested positive for COVID-19 and this can be attributed to workplace exposure. It is up to you to judge whether an infection was the direct result of occupational exposure. You should fill out the “case of disease” report form and specify exposure to a biological agent as the cause.

Third, an employee’s death can be attributed to occupational exposure. If there is reasonable evidence that an employee’s death was caused by occupational exposure to COVID-19, you should notify the enforcing authority immediately and send a report within ten days. You should use the “case of disease” report form and specify exposure to a biological agent as the cause of death.

If you need more help understanding or complying with RIDDOR, please contact our experts.

Mythbusters

We hate to see health and safety legislation used as a scapegoat, especially when it’s accused of ruining everyone’s fun. In this edition of myth busters, we set out to prove that health and safety is not on a mission to spoil your celebrations at Christmas.

Crossed off the Christmas card list

A card shop put up a sign saying that trolleys weren’t allowed due to “health and safety and the size of the store”.  The sign makes it clear that space restrictions are the real reason for the rule – something completely separate from health and safety. Presumably, the manager felt that mentioning health and safety gave the rule more authority, but in reality it only created confusion.

Candle in the bin

In an even stranger case, a pub refused to light all of the candles on a birthday cake “for health and safety reasons”. We can promise you that there is no legislation limiting the number of candles on a birthday cake, or any other type of cake for that matter. Either the pub was being overcautious, or perhaps they had lost some of the candles.

From all of us at the H&S Dept, have a happy Christmas and light as many candles as you want – as long as you do it safely!