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.
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 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...
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