In Weddall v Barchester Healthcare Ltd and Wallbank v Wallbank Fox Designs Ltd (heard together) the Court of Appeal tried to distinguish between when it can, and when it cannot, find an employer vicariously liable for the violent responses of an employee to lawful instructions given by a senior employee.
Weddall v Barchester Healthcare Ltd
In the first of the two cases the Claimant Mr Weddall, was the deputy manager of a care home. It was part of the Claimant’s duties to arrange replacements for shifts and anyone asked to cover shifts was free to accept or decline the invitation. On one occasion when there was a shortage of staff, the Claimant had telephoned another employee, health assistant Mr Marsh, to ask if he was willing to work the night shift. However, Mr Marsh, who was drunk and upset at the time, took offence to the call, believing the Claimant to be mocking his drunken state. Following the call Mr Marsh called the care home to say that he intended to resign and then cycled to his place of work where he viciously assaulted the Claimant. This attack occurred twenty minutes after Mr Marsh had been contacted by the Claimant.
Wallbank v Wallbank Fox Designs Ltd
In the second case the Claimant , Mr Wallbank, was the managing director of Wallbank Fox Designs Ltd, a small manufacturing company. The Claimant had asked an employee, Mr Brown, to correct an error in the manufacturing process during Mr Brown’s period of supervision. This oversight had been causing a loss of fuel. Mr Brown ignored the request and the Claimant asked him for a second time, by telling Mr Brown to “come on”. Mr Brown responded to this by attacking the Claimant and throwing him onto a table.
In the first case the Court of Appeal upheld the County Court’s decision that the employer, Barchester Healthcare Ltd, could not be vicariously liable for Mr Marsh’s conduct. It said that Mr Marsh’s drunken actions were separate and distinct from his employment as a health assistant. In contrast, in the second case, the Court of Appeal held that the employer in question could be held vicariously liable for the violent behaviour of its employee.
Unlike the first case where the request to fill an empty shift was deemed a mere “pretext” for Mr Marsh’s violence and not closely connected to his work, Mr Brown’s violence was an instantaneous reaction to an instruction closely related to his employment in both time and space. In addition, the possibility of “friction” was held to be “particularly” pertinent in a factory where instant instructions and quick reactions are required.
Whilst the Court was able to make a distinction between these two cases, the reasoning for the distinction is not particularly clear. For instance the possibility of “friction” could be deemed just as inherent in a care home environment where medical emergencies or mental illnesses are common. Furthermore the delay in ‘time and space’ in the first case was inevitable as Mr Marsh was at home at the time and his response was perhaps as ‘immediate’ as was possible in the circumstances
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