Vicarious liability; agency workers; the 'general' employer retains liability unless transfer of control is absolute.
I Ll.LR 1 - Vicarious liability; fraud; employer liable for fraud of employee acting within apparent authority.
Racial harassment; vicarious liability; course of employment. The Court of Appeal held that 'in the course of employment' in the Race Relations Act 1976 must be given a broad, purposive interpretation, it is not to be equated with the common law tortious test. Acts of racial harassment by fellow employees can fall within the course of employment even where they are outside the employer's instructions, so long as they occur in a work context.
Harassment; vicarious liability; social events (e.g. pub drinks) immediately after work are 'in the course of employment'.
TUPE; transfer of a transferor's vicarious liability in tort to a third party; "under or in connection with" the contract of employment; reg.5(2)(a) of TUPE 1981 (now reg.4(2)(a) of TUPE 2006). Mr Doane, then playing for Sheffield United, was injured in an allegedly negligent tackle by Darren Holloway, then a Wimbledon FC player, whose employment later transferred under TUPE to Milton Keynes Dons.
TUPE; Vicarious liability; held (controversially) that an employer's vicarious liability for a transferring employee's tort transferred to the transferee under TUPE reg 4(2)(a). Distinguished and doubted in Sean Pong Tyres Ltd v Moore.
Discrimination; liability; tainted information; composite decision-making rejected. The Court of Appeal held that liability for a discriminatory act attaches to the individual whose own mental processes were tainted by the protected characteristic. A decision-maker who acts innocently on information supplied by another is not liable merely because that information was tainted, and the employer is not liable through the innocent act for the supplier's motivation: the separate-acts approach, under which the claim lies against the person who supplied the tainted information if that supply was itself a detriment. Later qualified for unfair dismissal by Royal Mail Group Ltd v Jhuti; held not to extend to s.47B detriment claims in William v Lewisham and Greenwich NHS Trust.
Agency; liability; a principal is only liable for an agent's act under s.109 EqA if the agent's act is itself a contravention of the EqA.
Vicarious liability; a company was vicariously liable for its managing director's assault on an employee at an impromptu drinking session after the office Christmas party: there was a sufficient connection between his field of activities (he had chosen to exercise managerial authority in the argument) and the assault. Emphatically not authority that employers are insurers for all violence between colleagues.
Vicarious Liability; data breach; employer not liable for a rogue employee's data leak committed for personal vendetta.
Vicarious Liability; independent contractors; bank not liable for sexual assaults by an independent contractor doctor (distinct from employees).
Vicarious Liability; negligence; employer not liable for a practical joke (exploding pellets) by a contractor/employee as it was not in the course of employment.
Vicarious Liability; 'close connection'; further narrowing of the test; rape committed by an elder was not closely connected to his role.
TUPE; transfer of liability; discrimination by a transferring employee. The EAT (Judge Stout) held that an employer's liability under ss.39 and 40 of the Equality Act 2010 for discrimination and harassment by one of its employees is a primary liability, not a vicarious one, so it does not pass to a transferee under reg 4(2)(a) merely because the perpetrator's employment transferred; the same applies to liability for the resulting constructive dismissal [32]-[33]. Doane v Wimbledon FC, a county court decision that a transferor's vicarious liability in negligence transfers with the tortfeasor, was persuasive on its own facts but does not govern statutory liability under the 2010 Act [30]-[32]. The victim, whose own employment had not transferred, keeps his claim against the original employer. The employer's appeal against the refusal of its late amendment to plead the transfer was dismissed [47].
TUPE; vicarious liability; reg 4(2)(a); 'in connection with'. A hospital in-patient sued the operator, H Ltd, for wrongs by two of its employees whose employment later transferred under TUPE to AYP Ltd. On a preliminary issue the High Court (HHJ Bird) held that none of H Ltd's alleged vicarious liability for those employees' torts or breaches of human rights passed to AYP Ltd. Liabilities that transfer under reg 4(2)(a) are those sufficiently closely connected with the contract of employment, meaning fundamental parts of the employer and employee relationship; vicarious liability to a third party is not one. The judge agreed with much of Sean Pong Tyres Ltd v Moore but declined to follow Doane v Wimbledon Football Club, which had weighted the words of reg 4(2)(a) over its purpose. The claim remained against the original employer.
Whistleblowing; the Court of Appeal called for legislative reform, stating they would have departed from Timis v Osipov if not bound by it; confirmed that an employee can bring a dismissal detriment claim against their employer under s.47B ERA 1996.
TUPE; Vicarious liability; rejected the view that a third party could sue the transferee based on secondary liability arising from the actions of an employee whose contract of employment has been transferred. The liabilities to which TUPE refers in Reg 4(2)(a) are liabilities owed to the person transferred, not liabilities owed to third parties.