While practical jokes and pranks at work can be considered a natural way of letting off steam, some actions can pose a serious health and safety threat. Mike Sopp looks at recent and historical cases that show how “horseplay”, when it goes wrong, can have a serious impact on both individuals and the employer.
For a large proportion of the working population, going to work means spending a considerable amount of time in a workplace interacting with others.
In many work environments, so-called horseplay is common and forms a part of an organisational culture often to alleviate boredom and stress or to create bonds between work colleagues.
It is a common misconception among employees that health and safety is the sole responsibility of the employer and that if an accident or incident were to occur (including one resulting from horseplay) that resulted in the injury of another person, it would be the employer that would have full responsibility.
However, pranks at work that injure or threaten to injure another person may be the subject for individual prosecution against the perpetrator.
Section 7 of the Health and Safety at Work, etc Act 1974 requires the employee to “take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work”.
Section 8 then requires that “no person shall intentionally interfere with or misuse anything provided in the interests of health, safety and welfare in pursuance of any of the relevant statutory provisions”.
These duties include avoiding obviously silly or reckless behaviour and employees who fail to comply with either of the duties described above make themselves liable to be prosecuted in the courts.
As such, the prosecution of individuals does occur as a result of horseplay or practical jokes at work. The Health and Safety Executive (HSE) Operational Circular OC130/8 states that “some acts of horseplay and violence against people will come within the scope of s.7 if they arise out of or in connection with work and put people’s health and safety at risk”.
In a case in 2006, Mr Smith, an employee, was fined £1000 in a prosecution brought by the HSE after an accident involving a fork-lift truck at Premier Storage left two teenagers seriously injured. One suffered a broken back, the other a broken neck and back.
A fork-lift truck with a man-riding cage was parked outside a warehouse when the two brothers from a neighbouring firm climbed into the cage. The manager of the warehouse that owned the lift truck raised the cage. An employee then proceeded to climb into the lift truck, reversing it in the grounds of the warehouse with the cage still raised. He made a sharp turn, causing the lift truck to overturn, which in turn caused the injuries to the teenagers.
Following the prosecution, the HSE inspector stated that “this case is a stark reminder to all that fork-lift trucks are not toys to be played with and that if employees decide to undertake such an act of horseplay then the Health and Safety Executive will take action against them”.
Another example is an employee who was fined following injury caused to a colleague by a practical joke. A 17-year-old was locked inside a toilet at a fertiliser factory by other staff members. One employee poured a floor cleaning substance under the toilet door.
This contained concentrated hydrochloric acid, which reacted with fertiliser and dirt on the toilet floor, causing a release of toxic fumes. The victim of the joke inhaled the fumes, collapsed and was subsequently taken to hospital.
Although others had contributed by locking the door, the employee who caused the injury was prosecuted under s.7, after admitting that he knew the floor cleaner would produce fumes. He was fined £150 with costs of £150 and compensation of £50.
Employers can be held vicariously liable for employees where it can be proven that the employer is aware of the horseplay taking place.
In one such case, a South Wales office furniture firm was fined a total of £10,000 following an incident in which a young employee was injured during leaving celebrations for another employee.
The employee leaving was tied up, placed on the forks of a lift truck and was driven around the site. This included passing through perspex doors. The driver of the fork-lift truck drove through these doors, striking another employee who was on his way to join in the celebrations. He suffered a broken ankle.
The subsequent investigation found that the employer had failed to ensure that its employees were properly supervised as both the works and production managers were aware of the goings-on, but failed to stop this from occurring. Indeed, supervisors were found to take part and instigate such activity in some cases.
Further, although the perspex doors were designed for use by the fork-lift trucks, they were regularly used by employees as a means of access and egress. The driver of the lift truck had received no training in its safe operation with untrained operatives/supervisors regularly operating the lift trucks.
The employer pleaded guilty, but stated that all of its employees had been instructed to use the pedestrian walkways at the site and that all acts of horseplay had been stopped. They were fined £7500 under the Health and Safety at Work, etc Act 1974 and £2500 under RIDDOR for failing to report the incident.
In a more recent case, a waste management firm was fined £136,000 with £64,770 costs after an employee was crushed by a motorised shovel and subsequently died. The HSE Investigating Inspector said that there had been “extended, terrible horseplay” prior to the incident.
CCTV footage showed workers having to jump out of the way of vehicles and machinery being driven at somebody seated in a chair. The HSE’s investigation revealed a “litany” of unsafe practices in the 10 days prior to the employee’s death.
Sentencing, the judge stated that it was important to understand that the firm was not only prosecuted for the death, but for “consistent disregard of worker safety on the premises over a 10-day period”.
In addition to criminal prosecutions, employers may face civil claims arising due to injuries inflicted by horseplay or pranks at work.
However, case law suggests that if an employer can show that the employees undertaking the actions were acting on a “frolic of their own”, not connected to work, the employer would not be liable for damages.
The key case on this is Smith v Crossley Brothers (1951), where a practical joke involving inserting a rubber hose into the rectum of an employee by co-workers caused injury. The court found the employer could not have prevented such an unpredictable action.
In the more recent case of Patel v Homerton University Hospital NHS Foundation Trust (2017), the court found that the employer was not liable for injuries sustained when a co-worker pulled the claimant’s chair away as she was about to sit down, causing damage to her spine.
Dismissing the case, the court decided that the employee who pulled the chair away was “acting in a purely private capacity, unconnected with his work” and therefore the employer could not be held responsible.
Similarly, in the case of Graham v Commercial Bodyworks Ltd (2015), the Court of Appeal reviewed the case law on employer liability for employees’ acts of violence and concluded that “frolicsome but reckless conduct” cannot normally be said to have occurred in the course of employment, meaning that it was inappropriate to impose liability on the employer in this case.
However, there are occasions when employers can be held liable. In the case of Hudson v Ridge Manufacturing Co Ltd (1957), an employee’s wrist was broken following a practical joke. The person responsible for the practical joke was known to be a “prankster” by his employer and as such the employer was liable as it was obvious he posed a danger, but it did nothing to prevent the behaviour.
Employers cannot rule out the possibility that horseplay at work will result in harm being caused and that they can be held liable for the actions of their employees in such circumstances.
Employers should, therefore, put in place appropriate policies and procedures in relation to pranks, practical jokes and horseplay that inform employees of the consequences of inappropriate behaviour at work. It is important to strike a balance and not to discourage banter that can have a positive impact by setting out clearly what is deemed to be acceptable and unacceptable behaviour.
Where any activities take place that could constitute inappropriate horseplay, the employer, having been made aware of the activities, must take action to protect itself. Such actions should be discouraged and, where necessary, dealt with as a matter under organisational disciplinary procedures. When doing so, consideration should be given to the:
risks if the horseplay goes wrong
impact on the physical and mental wellbeing of the employees at potential harm
potential damage to the employer (eg financial and reputational)
level of cultural acceptance of horseplay.
Last reviewed 17 December 2018