Agency Workers and Vicarious Liability

Where a company provides another with its employees on a temporary basis the question arises which is the ’employer’ and therefore vicariously liable for the employees actions? Generally the courts have found that it is the employer who provided the employee. However recently in Hawley v Luminar Leisure plc and ors the Court of Appeal defined circumstances where it is the employer who has the temporary benefit of the employees services that is the employer and vicariously liable.

This case involved a doorman, employed by an agency, whom they provided to Luminar to work on the door at a Chicago Rock Caf?. He caused severe injuries to Hawley. As Luminar exercised detailed control over the doorman’s services and he took orders from the Luminar Manager, Luminar were the employer. There had been an effective and substantial transfer of control and responsibility.

Following on from Sally Mackie’s seminar last week and also on the subject of vicarious liability we await the decision in Majrowski v Guy’s and St Thomas’ NHS Trust which is considering whether an employer can be vicariously liable for an employee’s breach from the Protection from Harassment Act 1997.