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Vicarious Liability Once Removed? by Way of TUPE - Lucile Taylor

23/11/17. Case Comment on Baker v British Gas Services (Commercial) Ltd and J&L Electrics (Lye) Ltd [2017] EWHC 2302 (QB).

The question addressed in Baker was whether liability for an injury sustained by an employee aftera TUPE transfer, due to a breach of duty committed by the transferor before the transfer, is imposed on the transferee.

Previous cases have concerned circumstances in which both the negligence and the injury occur before the TUPE transfer. The issue had been whether this accrued liability transferred to the transferee. It did.

Is the answer the same where liability is only contingent because, while the negligence took place before the transfer, the injury was only sustained after the transfer? The Defendant submitted that there was no authority for imposing liability on transferees for 'liabilities which are unknown to the employee or transferor – because they do not exist.' [65]

The answer given by Amanda Yip QC (sitting as Deputy Judge of the High Court) was a resounding yes: tortious liabilities transfer irrespective of whether they are fully accrued or contingent, following Martin v Lancashire County Council [2000] 3 All ER 544. [68]

The TUPE Regulations are not designed to protect transferees from unknown liabilities...

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