Employment News: vicarious liability, age discrimination

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Only joking – employer not vicariously liable for practical joke

In Chell v Tarmac Cement and Lime Ltd employees of Roltech Engineering were contracted to work alongside Tarmac employees at a site, resulting in some tension between them. Possibly as a result of this, one of the Tarmac employees caused a pellet target to explode close to a Roltech employee’s ear, causing him a perforated eardrum, noise-induced hearing loss and tinnitus. The judge described this as “some form of (wholly misguided) practical joke”. The question for the High Court was whether Tarmac was vicariously liable to the Roltech employee for the actions of its own employee.

The High Court upheld the County Court finding that it was not. The County Court Judge had correctly identified the legal questions he had to decide, namely whether there was a sufficient connection between the employment relationship and the relevant act, having regard to the field of activities entrusted to the employee, to make it just for Tarmac to be held responsible for the act. He was entitled to conclude that the employee’s actions were not within the field of activities assigned to him, given that:

  • The pellet targets had been brought from home and were not work equipment;
  • It formed no part of the employee’s work to use or hit pellet targets at work;
  • The actions were not connected to any work-related instructions and did not advance Tarmac’s purposes;
  • The employee had no supervisory responsibility for the claimant and was meant to be on another part of the site at the relevant time; and
  • The work only provided the opportunity to carry out the prank.
Further, the tensions between the Tarmac and Roltech employees, of which Tarmac had been made aware, did not create a sufficiently close connection between the employment relationship and the wrongful act to require Tarmac to be liable on the principle of social justice. There was no suggestion that the tension between the two groups of employees was so serious as to give rise to the possibility of violence, and the evidence was that the incident was a joke gone wrong and not intended to cause injury.

The High Court considered that although the Supreme Court decision on vicarious liability in Morrisons v Various Claimants was not available to the judge when he reached his decision, his approach was endorsed by the Supreme Court’s judgment.
 
Undeserved – recruitment from talent pool potentially discriminatory
 

Indirect discrimination occurs where a provision, criterion or practice (PCP) adopted by an employer places people who share a protected characteristic, including the claimant, at a particular disadvantage. Ryan v South West Ambulance Services NHS Trust is a reminder that if the necessary group and individual disadvantage are present, it will be relatively uncommon for a claim to fail because there is no causal connection between the PCP and the disadvantage.

The employer had established a “talent pool” of high performing employees from which certain vacancies could be filled without the need for a full recruitment exercise. An employee would be placed in the talent pool if they were graded as “exceeding expectations” in their annual appraisal or on appeal. Employees could also self-nominate themselves for inclusion in the talent pool. Undisputed evidence showed that employees aged 55 to 70 had a much lower chance of being in the talent pool than younger employees. Mrs Ryan, who was in that age bracket, was not in the talent pool.

Two roles that Mrs Ryan would have been qualified to undertake became available and were filled from the talent pool. She complained that her inability to apply for the roles was indirect discrimination because of her age. The tribunal agreed that there was a provision, criterion or practice of promoting managerial staff on the basis of their membership of the talent pool, that older employees had a reduced likelihood of being in the talent pool and that on the face of it Mrs Ryan was disadvantaged because she was not in the talent pool. However, it found that she was an “undeserving” claimant in a legal sense because the reason she was not in the talent pool was because she had not tried to gain entry to it. It was not the PCP that put her at a disadvantage, but her failure to apply to be included in the pool. As there was no causal link between the PCP and the disadvantage, her claim failed.

The EAT overturned that decision. The tribunal had not realised that there must be a correspondence between the group disadvantage and the individual disadvantage complained of. The tribunal had accepted that there was a PCP of promoting from the talent group and that there was a lower likelihood of the affected age group being members of the talent pool. This established the necessary group disadvantage. The claimant was not in the talent pool so she suffered the same disadvantage as the group – she was not considered for two roles she would otherwise have been qualified for. There was no evidence about what would have happened if she had appealed her appraisal grade or self-nominated herself for the talent pool, so it could not be said that it was her failure to do those things that had prevented her from being in it. The conclusion that she was “undeserving” because there was no causal connection between the disadvantage and the PCP could not stand.

The tribunal had also fallen into error when it decided that the PCP was objectively justified. It had not carried out the necessary balancing exercise between the reason and need for the PCP and its discriminatory effect. In particular, it did not consider whether the roles in question needed to be filled quickly, the fact that not being in the talent pool was an absolute bar to being considered for the roles, or whether there were less discriminatory measures that the employer could have adopted, such as making membership of the talent pool desirable but not a condition of eligibility.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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