Assaulted at work by a co-worker? When can you claim compensation from your employer?
Posted by Jeremy Horton on 31st January 2012
This was the question the Court of Appeal had to consider very recently in two separate cases. Often an employer is legally responsible for unlawful acts carried out by its employees even when those acts are criminal and violent. In these cases an employer will be liable to pay compensation for personal injuries resulting from the assault. However, this depends on whether the action was “in the course of their employee’s employment”. This is not always easy to assess.
In Richard Weddall v Barchester Healthcare Ltd Mr Weddall was Deputy Manager at a care home. One of the employees had called in sick and he needed to arrange for cover. He called Mr Marsh at home to see whether he would come in. Mr Marsh was drunk and refused the request. Mr Marsh felt Mr Weddall was mocking him for being drunk and got very angry. He told him he would was going to resign. Having refused to come in, 20 minutes later he got on his bike and rode to the care home. This was not because he had had a change of heart about working. When he arrived he saw Mr Weddall in the front garden and without any prior conversation violently assaulted him. The judge who first heard the case decided that the care home as employer was not liable for Marsh’s assault. He therefore refused Mr Weddall any compensation for the injuries resulting from his assault.
In Wallbank v Wallbank Fox Designs Ltd Mr Wallbank was the Managing Director of a factory employer, where Mr Brown worked under him. They were using an industrial oven in painting metallic bed frames. Mr Wallbank noticed that Mr Brown had only loaded one bed frame, wasting a lot of fuel. Wallbank pointed this out and told him to “come on”, with the intention of helping him load more bed frames. Mr Brown joined him at the other end of the oven, ostensibly to help push another bed frame in. However when he got there Mr Brown assaulted him, throwing him onto a table. As a result of the assault he fractured vertebrae of his lower back. Again the judge who first heard the case decided that the company were not liable for the assault.
The Court of Appeal observed that whether an employer was legally responsible for assaults committed by his employee, depended on how closely were that employee’s acts connected to the work he was employed to do. In both of these cases the assault was carried out as a response by a junior employee to a more senior employee’s instructions. However, there was no distinction between violence towards a third party or towards a fellow employee. Neither could they be distinction between violence inflicted by senior or junior employees. The key test was whether the assault was so closely connected in place time and space to the work the employee was meant to be doing that it would be fair, just and reasonable to hold the employer responsible to compensate. It would be going too far to say that an employee who reacted violently towards another employee giving an instruction was always acting within the course of his employment. However it would often be unfair to deprive an employee of a remedy where he had been assaulted as a reaction to such an instruction. The possibility of friction was an inevitable part of any employment relationship. Frustrations leading to a reaction involving some violence were predictable. The risk of an “over-robust” reaction was a risk created by the employment, which might be reasonably incidental. However, not every act of violence by junior to senior employees in response to an instruction would make the employer liable. In Mr Weddall’s case they found the judge’s conclusion had been correct. The employee’s attendance at the care home in the attack 20 minutes after their conversation was an independent venture quite separate and distinct from his employment. The instruction was no more than a pretext for violence wholly unconnected with his role. It was remote in place and time from what he was employed to do. In Mr Wallbank’s case the violence was closely related to the employment in time and space. It was a spontaneous and almost instantaneous response to work instruction. Reactions to instructions- normally by carrying them out- was a part of employment. This assault was sufficiently closely connected to the work that the employee was employed to do that it was fair, just and reasonable to hold the employer liable. The judge’s decision was overturned and Mr Wallbank was awarded compensation for the injuries caused by the assault.
Comment
It is difficult to say sometimes whether an employer will be held liable for unlawful acts by his employees, especially where violence is involved. In the past the test was rather more narrow. The question was whether an employee was doing what he was employed to do but in an unauthorised manner. In the case of Lister 2001 the House of Lords decided this was too restrictive . They then found that a care home could be liable for sexual assaults on children in their care committed by their employee. In no way could these assaults be considered an unauthorised way of doing what employee was employed to do. They decided that the test of when an employer is liable for unlawful acts committed by his employee was one of the closeness of connection of the employee’s acts to his employment. These two cases are a good illustration of when an assault is sufficiently connected to the employment for the employer to be liable. In Mr Weddall’s case there was a whole 20 minute gap between the work instruction and the assault. The assault was committed when Marsh was off duty. He did not attend the work place to do any work, which he had refused to do, but just in order to assault the more senior employee. The whole thing seemed to be pre-meditated. In contrast, in Mr Wallbank’s case the interval between the work instruction and the assault was mere seconds and the junior employee was only there in order to work. The assault was just incidental to that. For one mad moment he “lost it” due to his angry response to the work instruction and suddenly assaulted his boss.
If you or a family member has been assaulted at work by a co-worker you may be entitled to compensation from your employer. Please call us for free advice
