Employment tribunal and court judgments | October 2020

Chell v Tarmac Cement and Lime Ltd

Liability of employers for employee practical jokes

In the case of Chell v Tarmac Cement and Lime Ltd, the High Court upheld a county court decision that an employer was not negligent or vicariously liable for a contractor's personal injury suffered in its workplace because of an employee's practical joke.

The judge highlighted that practical jokes are the lowest form of humour and is seldom funny and often a form of bullying. The practical joke in this instance concerned two pellet targets that were planted so when hit with a hammer they caused a loud explosion. The Claimant was next to the explosion when it happened and suffered a perforated right eardrum and noise-induced hearing loss.

The Claimant brought proceedings against the employer claiming that they were negligent and vicariously liable for the actions of the employee who cause the explosion.

It was found that there was not a sufficient connection between the employer-employee relationship and the employee's prank such that the employer should be held responsible. Nor was the employer directly liable, as it could not reasonably have foreseen the risk of injury from a deliberate act of horseplay, ill-discipline or malice. Although the respondent was aware of some tension between its employees and the external workers, it had not been serious enough to suggest there was a risk of physical confrontation or violent acts.

It was expecting too much of an employer to devise and implement a policy or site rules that descended to the level of horseplay or the playing of practical jokes. On the evidence, the judge concluded that the existing site health and safety procedures were sufficient, nothing more specific could reasonably be expected, and increased supervision to prevent horseplay, ill-discipline or malice was not a reasonable step to expect the respondent to have identified and taken. 

Ferguson v Astrea Asset Management

The effect of TUPE and pre-transfer changes to terms and conditions

In the case of Ferguson and others v Astrea Asset Management Ltd, Mr Ferguson and his colleagues varied their employment contracts so that there were substantially improved terms in employees' employment contracts, which the employees had arranged in anticipation of a TUPE transfer to compensate them for loss of business. This was found to be void under the Transfer of Undertakings (Protection of Employment) Regulations 2006 reg.4(4).

Regulation 4(4) covered all contractual variations made by reason of the transfer, not only those which were adverse to the employee. Even if that interpretation of reg.4(4) was wrong, the employees were precluded from relying on the new contractual terms under the EU abuse of law principle as Directive 2001/23 could not be relied on for abusive or fraudulent ends.

The full decision can be read here.

Aramark v Fernandes

Is redundancy unfair if an employer does not put an employee on a list of bank staff?

In the case of Aramark v Fernandes, the claimant had been dismissed as redundant, and made a claim of unfair dismissal. It was common ground that there was a genuine redundancy, but the claimant argued that there was procedural unfairness as the employer maintained a list of bank staff of different skills and abilities, who could be called to provide services to the respondent, and failed to put him on this list. It was common ground that those on the list had reasonable prospects of obtaining ad hoc instructions, although they were not guaranteed any work, and even when they were, they were not engaged as employees. 

At the Employment Tribunal, it was found that the employer's failure to add him to the list was unreasonable under s98(4) of the Employment Rights Act 1996, and the dismissal was therefore unfair.  

The employer appealed to the Employment Appeals Tribunal who found in favour of the employer, who clarified that s98(4) deals with the reasonableness of the decision to dismiss, and focuses on the availability of other reasonable alternatives to dismissal. In its judgment, it concluded that even if the employee had been placed on the list, this would not have removed the need for the employee's dismissal, as placing him on the list did not equate to the employee securing alternative work, but that it merely provided a prospect of work. In short, as placing someone on a bank list was not offering them new employment in another role (and thereby obviating the need for a dismissal), there was no procedural unfairness in the dismissal by not agreeing to put them on the bank list.

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