Case law update: Employee negligence does not transfer under TUPE regulations 2006

04 June 2025

In the recent case of ABC v Huntercombe (No 12) Ltd and others, it was held that vicarious liability (employers’ responsibility to a third party for the actions of an employee), for tortious acts (such as negligence) committed by employees prior to a Transfer of Undertakings (Protection of Employment) (TUPE) transfer, does not pass to the transferee.

Usually, employers are liable for negligent acts carried out by their employees in the course of employment. Under Regulation 4 of TUPE, where a ‘relevant transfer’ occurs, all of the transferor’s “rights, powers, duties and liabilities under or in connection with” the transferring employees’ contracts pass to the transferee. The argument in this case was that liability for the employees’ negligent act had passed to the transferee.

The Claimant sought damages for injuries suffered whilst she was an inpatient at a hospital run by the transferor. The Claimant argued that the transferor was liable for the acts of two of its employees, who had become employed by the transferee via a TUPE transfer.

The High Court held that the automatic transfer principle under Regulation 4 of the TUPE Regulations did not include a transferor’s vicarious liability for acts of its employees towards a third party, prior to a TUPE transfer.

Are you managing a TUPE transfer or reviewing employer liabilities? Our employment law experts can help you understand your risks and ensure compliance. Contact Backhouse Jones for tailored legal advice today.

This article was written by Gabrielle Scriven.