Confessions of a Shedder
Following on from my last blog, it’s time to reveal another of my ‘quirky’ jobs that I had before I became a solicitor.
You’ve already heard about my brief stints as a Paris tour guide, goat herder and Blackpool taxi driver. In this blog, we return to Blackpool - home of rollercoasters, relentless sunshine, and my career low point: “professional” shed builder.
I spent a summer in the late '90s building garden sheds in Blackpool to help fund me through university during its hottest summer in living memory (just over 17°C).
Now, I use the word “building” generously. If sheds had a governing body, I would’ve been disbarred. I once nailed a door shut from the inside and confidently told a customer that a 30 - degree lean was “Scandinavian minimalism.” Let’s just say the structural integrity of my handiwork depended heavily on favourable weather and low winds.
And being ginger, I was physically unfit for the role in every possible way. The sun didn’t just burn me - it used me as a cautionary tale. I once got sunburned through a cloudy sky and a fleece. My neck peeled like a croissant. There were times I’d lie on the shed floor mid-shift; not because I was tired but because I was trying to cook the other side evenly.
It’s safe to say that I’ve seen poor structural support up close. And that brings me neatly to today’s case: ABC v Huntercombe Ltd, where the courts took a hard look at what liabilities carry over in a TUPE transfer - and which, like me at 4:30pm on a Blackpool seafront, are left out to fry.
Vicarious Liability and TUPE Transfers: Insights from ABC v Huntercombe
In ABC v Huntercombe Ltd, the Claimant sought damages for injuries sustained while being an inpatient at a hospital previously owned and operated by Huntercombe (the transferor). The Claimant argued that Huntercombe should be vicariously liable for the actions of two employees who, following a TUPE transfer, became employed by Active Young People Ltd (the transferee). Vicarious liability typically holds employers accountable for torts (such as negligence) committed by their employees in the course of employment, even if the employer was not directly involved in the wrongful act.
Huntercombe contested the notion that it was liable for the employees' actions after the transfer, especially since they had become employees of Active Young People Ltd. The central issue revolved around whether the transfer of liabilities under TUPE extended to vicarious liability for torts committed prior to the transfer.
The Legal Framework: TUPE and Vicarious Liability
At the heart of this case lies the interpretation of TUPE Regulation 4, which governs the transfer of liabilities between the transferor and transferee in relevant transfers. Specifically, Regulation 4 mandates that all "rights, powers, duties and liabilities under or in connection with" the employees' contracts automatically pass to the transferee. This is designed to ensure that employees' terms and conditions of employment are safeguarded when their employer changes, thereby preventing any negative impact on their rights.
However, this automatic transfer does not extend to all liabilities, especially when those liabilities are not directly related to the employment contract. Vicarious liability, which holds an employer accountable for the torts of its employees towards third parties, falls into this category of remote obligations.
The High Court in ABC v Huntercombe ruled that vicarious liability for torts committed by employees prior to a TUPE transfer does not automatically transfer to the transferee. This decision stems from the understanding that vicarious liability involves responsibility towards third parties, not a direct contractual obligation between the employer and employee.
The Court's Reasoning
The court emphasized that the primary aim of TUPE is to protect the employment rights of employees during a transfer, ensuring they do not lose benefits or protections as a result of a change in employer. However, this protection applies only to the employment relationship itself — to the "rights, powers, duties, and liabilities" directly associated with the employee's contract of employment.
In contrast, vicarious liability is a form of secondary liability that arises from an employer’s responsibility for the actions of its employees. This liability is not a direct contractual obligation between the transferor and the employee but rather a responsibility to third parties who may have been harmed by the employee's actions. Since the liability to a third party does not flow directly from the employment contract, the court held that it does not transfer automatically under TUPE.
Implications for Employers and Transferees
For transferees, this ruling means they won’t automatically inherit vicarious liability for torts committed by transferred employees prior to the transfer. For transferors, it highlights the importance of considering all liabilities, including potential ongoing vicarious responsibility for past acts.
Conclusion
The ABC v Huntercombe case clarifies that TUPE protects the direct employer-employee relationship but does not normally extend to vicarious liability for third party torts committed before the transfer. This distinction ensures that businesses understand the scope of liabilities that do and do not transfer, providing clearer guidance for managing risks during TUPE transfers.
And Finally… A £361,000 Wake‑Up Call Over a Colleague’s Slur
Let’s close with a story that's no joke - yet highlights why workplace culture matters as much as TUPE compliance.
Earlier this month, a London Employment Tribunal awarded £361,000 to Richard Assan, a former security manager. Over several years, he endured a toxic environment at Vigilant Security - including being called a "slave" by a white colleague. The tribunal found that while some discrimination claims failed, the treatment constituted victimisation and unfair dismissal, factoring heavily in the massive award. That's right - not a typo: three hundred and sixty‑one thousand pounds. It's a stark reminder that words matter and that the cumulative impact of a hostile environment can cost employers a small fortune
Until next time - stay sun‑safe, shed‑free and culturally‑aware.
