When an employer will be held liable.

Christopher Welch, partner in the employment law unit at Newcastle law firm Sintons, looks at employer liability.

THE news recently of an employee who, through a practical "joke" at work, unknowingly drank anti-freeze which resulted in him becoming blind, deaf and suffering renal failure, made quite horrific reading.

The employee concerned is now serving a 15-month jail sentence, whilst his former colleague is struggling to put his life back together. But what of the employer? Is there any potential liability on the part of the employer, given that the incident took place at work, involved two members of staff and, by all accounts, other employees observed the incident but did not take any steps to prevent it?

As a general rule, an employer is liable for the actions of its employees if those actions are closely and directly connected to their employment. It would seem clear, therefore, that if an employee goes off on what lawyers like to call "a frolic of his own", then the employer should not be liable for the consequences.

However, what the courts interpret as a job-related incident is often surprising. For example, an employee who suffered racial abuse at the hands of his co-workers, culminating in his being branded with hot screwdrivers, was able to bring a claim against his employer for failing to take steps to prevent this.

The development of the law in this area may have more to do with who has insurance and is better able to meet a claim for damages, than a strict interpretation of legal principles. However, the lessons are clear. It is essential that employees are properly supervised and subject to monitoring. Proper procedures and policies must be in place in respect of working practices, which must be underpinned by systems to ensure compliance.

All employees must be encouraged to immediately raise any issues of concern with line management ( in the incident in question if any of the other employees who had witnessed the event had brought it to the employer's attention then it is possible that an antidote could have been administered to prevent the worst of the symptoms developing.

Employers must, more than ever before, pay careful attention to the actions of their employees. What may once have been dismissed as horseplay or something outside the remit of somebody's job and so not the employer's responsibility or fault, may result in a claim against the employer.