When will employers be liable for the actions of violent employees? – a new case discussed

Statistics published by the Health and Safety Executive (HSE) for 2023/24 provide an insight into the prevalence of incidents involving violence in the workplace. There were 290,000 assaults in the workplace in 2023/24 of which 35% resulted in injury, most commonly, minor bruising or a black eye.

The recent High Court case of Evan S v Magiboards Limited  considered some of the issues involved in civil claims arising from such incidents.

Background

The claimant issued a claim for injuries sustained when the claimant and another factory operative ‘Mr B’ became involved in a physical altercation in the workplace that led to Mr B punching the claimant in the face. As a result, Mr B was dismissed for gross misconduct following a disciplinary hearing.

The claimant alleged that the defendant was primarily liable for the his injuries in negligence, on the basis that the defendant failed to take reasonable care for the safety of the claimant whilst at work.

On one occasion, it was alleged that, in the presence of the supervisor, Mr B walked over to the claimant’s bench and forcibly turned off his radio in what was said to be an angry confrontation. When the claimant complained to his supervisor, Mr B told the claimant in front of that supervisor, that nobody liked him.

Further altercations took place between the claimant and Mr B.

The claimant argued that the defendant was vicariously liable for the intentional tort of its employee, Mr B, who, it was said, was acting in the course of his employment at the time that he struck the claimant.

Primary Liability

As his employer, the defendant owed a duty of care to the claimant, its employee, to take reasonable care for his safety whilst he was at work. In order for a breach of duty to be established, the court had to be satisfied, on the balance of probabilities, that it was reasonably foreseeable that Mr B would attack or assault the claimant. If the court was satisfied, then it would need to consider whether there were additional measures that the defendant could or should have taken to prevent the assault and, finally, whether those measures would have prevented the assault.

In this case, the claimant failed to satisfy the judge on the balance of probabilities, that it was reasonably foreseeable that Mr B would attack him. The acceptance by the supervisor that, in hindsight, he could and would have done things differently did not assist him as hindsight is not the basis for

liability. By the time he realised that, on that day there would be a confrontation, nothing practically could be done. There were no measures, in the court’s judgment, that could have prevented the assault that did in fact occur.

Vicarious liability

It was common ground between the parties that to establish vicarious liability, the claimant had to satisfy the court, on the balance of probabilities, that:

The relationship between the defendant and  Mr B, was one that could give rise to vicarious liability. In this case it was not controversial because it was accepted that Mr B was an employee of the defendant.

There was a sufficiently close connection between that relationship and the wrongdoing of Mr B. It was the consideration of the second-stage test that was in issue in this case.

The court was not satisfied, on the balance of probabilities, that there was the required close connection between the employer and the deliberate tort of Mr B. It rejected the claimant's argument that Mr B's obligation, as an employee, to observe the workplace rules and generally act in the furtherance of the interests of his employer, fixed the employer with liability for his deliberate tort. That argument was, in the court’s judgment, an artificial construct. Mr B had no supervisory responsibility over the claimant; he was not employed to superintend the claimant's conduct in any way. His actions were, in the court’s judgment, entirely unconnected to his employment, beyond the fact that they occurred in the workplace and were directed at a fellow employee.

The claim failed both in terms of primary liability and vicarious lability and stood dismissed.

Comment

The court accepted that whilst, with hindsight, steps could have been taken to avoid the confrontation upon which the claim rested, hindsight alone was not enough to cause liability to attach. The two-stage vicarious liability test was applied and in the circumstances of the case it was held that the assault was unconnected with the workplace save that it occurred there and was between colleagues. Just because it was accepted that matters could have been handled differently did not mean that liability would automatically attach to the employer.