All fun and games until someone loses an eye
Pranks have never been more prevalent — you can’t move for practical jokers and YouTube challengers.
But what happens when a prank at work goes horribly awry and everything ends in tears, not laughter? Can someone really be held liable for a prank’s unintended consequences?
We asked a prominent employment lawyer — Dan Chapman, Head of Employment at Leathes Prior Solicitors — for his take on April Fools’ tricks gone wrong, using some made up cases and reworks of older classics.
It was the morning shift at Trish and Ray’s Auto Spares, and brothers and apprentices Michael and Robert decided to pull an April Fools’ prank on fellow apprentice — and former friend — Graham. Catching him unaware at the vending machine, they managed to pull his trousers down and insert a rubber hose up his bottom. But that was not the end of it: with a flick of the wrist a burst of compressed air was sent charging down the hose. Graham was severely injured. And, the brothers being skint, he sought to recover damages from his employer, Trish and Ray.
The expert says… Unfortunately for employers, there are a whole number of circumstances within which actions of their employees can result in legal claims being successfully brought against them, and the sorry tale of Graham could be one of them.
Employers are vicarious liable for the actions of their employees if the connection between the employment relationship and the wrongful act is “sufficiently close” that it would only be fair to hold the employers responsible. So in this case, the court would need to decide whether the attack with the rubber hose was sufficiently connected to the brothers’ employment to warrant Trish and Ray being liable for their actions.
Unfortunately for Trish and Ray, the fact that the attack was carried out at work, and that the brothers used equipment that they would use as part of their jobs, could well result in the court finding that the attack was sufficiently connected to their employment to make Trish and Ray liable for damages.
It ought to go without saying that in addition to the employment law implications, there are potential criminal law consequences for conduct such as this.
On 1 April during a morning drink break at TR’s Construction, Jenny nominates James to drink a pint of fizzy drink as quick as he can. He reluctantly obliges, allowing Jenny to film him for her prankster YouTube channel. What Jenny doesn’t tell him is that she has squeezed some hand soap from the toilets in James’ pint as a prank. The concoction makes him feel extremely unwell. He has to take the next three days off work because of ill health, and feels a bit funny for another two days after that. Jenny posts the clip online, including a brief, but graphic, shot of him running off to the toilets to be sick. The video goes viral and is even seen by some of James’ clients, causing him extreme upset and embarrassment.
The expert says… James would, subject to his continuity of service, have a very strong claim for constructive dismissal. His employer is likely to be considered vicariously liable for the acts of Jenny (and even if they were not vicariously liable for the fizzy drink incident itself, their failure to then act robustly so as to deter her from the online posting would make them so liable).
James may also have a discrimination claim to bring if it be considered that he was selected to be the victim of this prank on the grounds of a protected characteristic. He would also have a personal injury claim that he could bring, both against his employer and Jenny, from which he might recover damages for both the physical and mental ill health he has suffered but also stigma damages for personal loss of reputation.
The tribunal/courts would need to consider the extent to which James consented to and co-operated with the prank although it would seem unlikely that even if he did, liability could be avoided (it may have an impact on the level of damages he would recover, at best).
Bored at work coming up to lunchtime at Trish and Ray’s Global Solutions — a packaging company — Tony considered his options. If the company was known for anything in the area it was for the high levels of banter and endless jokes within the workplace. Keen to top even himself, Tony marched into the lobby and — to the dismay of the unsuspecting secretarial staff — dropped his trousers, bent over with his hands on his knees, and started shaking his bottom at them. Janice, the most nervous member of the typing pool, complained to Trish and Ray. Tony argued that there was a long history of tomfoolery at the packaging company and that mooning had long been not only a way of life but also an often used morale booster. Janice brought a claim for sexual harassment.
The expert says… On the face of it, Janice has a viable claim for sex harassment (not sexual harassment, which is different). Given the argument that Tony is running, Janice would need to persuade the tribunal that the conduct in question was “unwanted” and that the conduct is “related to sex”. Dealing first with the “unwanted” issue, the case law is clear in that there is no need for Janice to have already made it clear to Tony that his conduct is unwanted.
In one case, the employer’s argument that a man could not know whether his conduct was unwanted until it had been rejected, failed. The tribunal said that would-be harassers cannot be allowed to “test the water” with impunity to see whether their conduct was objectionable to potential victims if their conduct is serious enough to reasonably be considered as harassment. A single incident can also be enough to constitute harassment.
I suspect therefore that Janice could prove the conduct was unwanted, notwithstanding Tony’s assertion that the behaviour has become a morale-boosting way of life. The tribunal will consider the matter from an objective perspective. Her bigger challenge may be to show that the conduct is related to her sex (gender). This does have a wide meaning so (for example) it has been held that conduct that, regardless of the reason for it, is otherwise related to sex because of the form it takes.
For example, telling sexist jokes that are not directed at anyone in particular, but which colleagues (regardless of their gender) find offensive. I suspect she would be able to succeed on this argument.
Janice may also have a claim, should she wish to resign, for constructive dismissal.