TUPE Regulations 2006: Natasha Partos Case update on Impact of Personal Injury claims

In Baker (through his wife and litigation friend) v British Gas Services and J and L Electrics Limited [2017] EWHC 2302 (QB) the court was asked to consider the liability of two defendants arising out of an accident at work.

The background to the case involved Mr Baker who sadly suffered from a massive electric shock during the course of his employment as a maintenance man. Mr Baker had attended a high street bank in order to replace a number of lamps that were not working. Mr Baker was attempting to fix one of the defective lights, when as a consequence of defective wiring, he sustained a massive electric shock causing him significant injuries and cognitive impairment.

The First Defendant was Mr Baker’s employer at the time of the accident and the Second Defendant was the electrical contractor who had been responsibility for fitting the original wiring at the premises in 2004.

Liability for the defective wiring was denied by the First and Second Defendant. The parties disputed the date on which it could be shown that the wiring had been wrongly fitted or become defective and so could and should have been identified during routine inspections.

The court preferred the evidence of the Claimant and accepted that the mis-wiring had occurred when the lights had been originally fitted by the Second Defendant in or around 2004. Therefore, liability was established on the part of the Second Defendant.

The court was next asked to consider what if any liability fell to the First Defendant.  Mr Baker’s contract of employment had been TUPE transferred to the First Defendant from a third party employer, CCES in 2010.

In accordance with regulation 4 (2) of the Transfer of Undertaking’s Regulations 2006 when a contract of employment is transferred from one employee to another:

(2) Without prejudice to paragraph (1), but subject to paragraph (6), and regulations 8 and 15(9), on the completion of a relevant transfer;

• (a) all the transferor’s rights, powers, duties and liabilities under or in connection with any such contract shall be transferred by virtue of this regulation to the transferee; and
• (b) any act or omission before the transfer is completed, of or in relation to the transferor in respect of that contract or a person assigned to that organised grouping of resources or employees, shall be deemed to have been an act or omission of or in relation to the transferee.

In 2009 and 2010 routine inspections of the wiring at the premises had been carried out by CCES employees. The 2009 inspection was limited however, the joint statement prepared by the experts confirmed that the inspection at the premises in 2010 had not been carried out ‘thoroughly or diligently’.  Based on this evidence the court concluded that the 2010 inspection should have picked up the mis-wiring that caused Mr Baker’s accident.

The court further concluded that had Mr Baker’s contract of employment not been TUPE transferred from CCES to the first Defendant in 2010, CCES would have been vicariously liable for their employee’s failure to carry out the 2010 inspection with due care. Thus, the Claimant contended that in 2010 when his contract of employment was transferred from CCES to the First Defendant in accordance with regulation 4(2) TUPE 2006, CCES’s liability for the negligent 2010 inspection transferred to the first Defendant.

The First Defendant sought to persuade the court that because the breach had occurred before the transfer – i.e. the inspection had not been adequately undertaken, but that the injury arising from the breach only occurred after the relevant transfer, the TUPE regulations did not apply.

The court rejected this argument as a ‘fundamental misunderstanding of the purpose of the regulations’. The court confirmed that the regulations are not designed to protect the transferee from unknown liabilities, quite the contrary ‘the situation of a breach of an employer’s duty before a relevant transfer which leads so an injury occurring after the transfer falls squarely within the regulations.’ To deny this would ‘frustrate the whole purpose of the regulations and underlying directive.

Therefore, the First Defendant was liable to the Claimant for a failure to identify and remedy the defective wiring before his accident including the 2010 inspection.

This case has confirmed that if a breach of an employee’S contract occurs before the contract is TUPE transferred to a third party employer, but that the breach only causes an claimant personal injury after the TUPE transfer, the transferor cannot rely on a defence that it was not aware of the breach at the time of transfer.

The court made it plain that the very purpose of the TUPE regulations is to protect the employee not the transferor and accordingly the tortious liability of a transferor does not have to be fully accrued at the date of the transfer.