How vicarious liability can impact your business.
Blog Posted: Monday 4th April 2022 by
We all enjoy having fun with our coworkers, and many will have pulled – or been the victim of – an April Fools’ Day prank at work at some point.
From wrapping your coworker’s computer screen in clingfilm to the classic stapler in jelly technique, many office pranks are innocuous and enjoyed with a sense of humor. However, while pranks can be a fun way to unwind and bond with coworkers, some practical jokes and raucous behavior can cause actual problems for companies and have potentially serious health and safety ramifications.
Over the years, numerous cases have highlighted how horseplay in the workplace can quickly get out of hand, and while most employers won’t desire to ban playful behavior altogether, there are risks to consider.
Employers can and are held liable for an employee’s practical jokes or behavior under vicarious liability, which describes a situation in which one person is held liable for the activities of another. In a workplace setting, an employer can be held accountable for its workers’ actions if it can be demonstrated that they occurred during the course of their employment.
An employer would have to demonstrate that they did not condone or accept this type of behavior. To do so, they would need evidence such as a solid policy on appropriate behavior and bullying/harassment, as well as evidence that they routinely investigate and penalize policy violations.
Vicarious liability occurs when one party is judged partially accountable for the unlawful activities of a third party. The third party bears its share of the liability as well. Vicarious liability can occur when one party is expected to be accountable for (and have control over) the third party and fails to carry out that responsibility and exercise that control.
In the case of Otomewo v Carphone Warehouse Ltd , two employees stole their manager’s phone and updated his Facebook status to suggest he had “finally come out of the closet” and was “gay and proud.” The employees were aware that the manager was not gay; however, the manager later filed a claim for sexual orientation discrimination against the company and was successful in the employment law tribunal, which ruled that the two employees’ behavior was “in the course of employment” and that Carphone Warehouse was liable.
The absolute minimum is a documented policy with methods to demonstrate policy implementation. Your policy should include the following:
- A straightforward explanation of what constitutes unlawful discrimination, harassment, and bullying; and
- The repercussions of policy violations, as well as the method for filing complaints and reports
- Ensure that complaints and reports are investigated and handled in a timely, fair, and effective manner and that the policy is consistently enforced through appropriate disciplinary action.
To ensure that all of your employees fully grasp the policies and practices, you should:
- Educate senior employees about the policy and processes;
- Introduce new employees to the company’s policies and processes; Employee handbooks are a great way to do this.
- Your employees should attend regular information sessions; and
- All employees should have easy access to the policy.
Although is good to have a workplace where employees feel as though they have a laugh and a joke, it is important to make sure that your employees understand the policies and practices in place to protect them and others from discrimination through simple April fools jokes. Contact Human Results if you need policy drafting and implementation or if you need help with vicarious liability.