This legal point was carefully considered by the High Court in the case of ABC v Huntercombe (No 12) Ltd and others.
The claimant initiated legal proceedings in the High Court seeking damages for alleged injuries she suffered as an inpatient at a hospital operated by Huntercombe. The company were the transferor in this case. It was argued that the transferor was vicariously liable for the actions of its two employees who allegedly injured the claimant. Following the alleged incident, the two employees transferred under TUPE to the transferee, Active Young People Ltd.
The position is that employers are liable for all acts of negligence committed by an employee in the course of their employment. The High Court had to decide whether Regulation 4 of TUPE transferred vicarious liability to the transferee. Regulation 4 states that where a relevant transfer occurs, all of the transferor’s rights, powers, duties, and liabilities transfer to the transferee.
The High Court ruled that Regulation 4 does not cover a transferor’s vicarious liability which the employee committed prior to the relevant transfer. The High Court said that Regulation 4 was only there to protect the employment rights of the employees after the transfer. The transferee will take on the rights and liabilities in relation to the employees’ contract with the outgoing employer. These liabilities can arise in contract or tort but must relate directly to obligations between the employer and employee. The High Court directed that vicarious liability which is connected to a third party rather than directly between employer and employee was to remote to be connected to a transfer under TUPE.
This article is for guidance only.
If you need any further advice and help, please do not hesitate to contact the Quest HR Advice Line on 01455 852028.
