EWJ June 61 2025 web - Flipbook - Page 4
TUPE: Does Vicarious Liability Towards
a Third Party for the Pre-transfer Actions
of a Transferring Employee Transfer?
by Emma Ahmed, Legal Director, Professional Support Lawyer - www.hilldickinson.com
Employees benefit from various special protections
when their employment transfers to a new employer
because of a TUPE transfer. In particular, under the
automatic transfer principle, most of the employee’s
employment terms are preserved on transfer and all
the transferor’s rights, powers, duties and liabilities
under or in connection with the employee’s employment contract transfer to the transferee. The High
Court has recently considered the legal position when
a claim for negligence is brought against an employer
by a third party, in relation to the pre-transfer negligent actions of an employee whose employment has
since been TUPE transferred to it.
this had since been sold via a TUPE transfer to A Ltd
and the employment of the two doctors had TUPE
transferred across to A Ltd. A preliminary issue arose
about whether the TUPE transfer meant that ABC
could bring her claim against A Ltd, which would establish whether it was the insurer of H Ltd or A Ltd
which was liable if ABC’s claim was successful.
The High Court held that any vicarious liability of H
Ltd for the alleged act/omissions of the doctors who
had treated ABC did not transfer to A Ltd under
TUPE. For liability to transfer under TUPE, there
must be a direct connection between the liability and
the transferred employment contract. The primary
purpose of the TUPE legislation is to safeguard the
rights of employees after their employment transfers
and it is not generally concerned with preserving the
rights of third parties.
ABC claims that she had suffered personal injuries
whilst she was an in-patient at a hospital. She asserts
that her injuries were caused by the acts/omissions of
two doctors employed by the hospital and brought a
claim seeking damages. At the relevant time, the hospital in question was owned/operated by H Ltd, but
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