When an incident happens at your place of business, who is responsible? And, if the incident is the result of poor judgement or negligent behaviour from one of your temporary employees, is it the responsibility of the agency or the temporary employer?
You might think that using an agency for staff such as doormen would be a better option than employing them directly. You needn’t worry about things like liability because the main employer shoulders problems such as the negligent actions of employees. By using an agency you’re paying for that convenience, right?
Unfortunately subcontracting does not guarantee the protection you might think it does from the actions of an individual staff member, as the prominent Hawley V Luminar Leisure case demonstrates.
Luminar operates many clubs throughout the UK. It contracted with ASE Security Services to supply door supervisors at one of its clubs. One of these doormen was Jeffrey Warren.
Mr Warren was working at the nightclub one evening in August 2000 when an incident occurred. Mr Warren punched one of the customers, a Mr Hawley, so hard that he fell and suffered permanent brain damage.
Mr Hawley issued proceedings for negligence against both Luminar, the company which owned the nightclub, and ASE, which employed Mr Warren, arguing that because the nightclub had control over the actions of the door staff that it was effectively their “temporary deemed employer”.
Luminar argued that it had contracted with ASE in its capacity as a “specialist independent contractor” to be responsible for security at the club. They said that although it was responsible for instructing ASE’s employees where they should stand and which customers to admit, they didn’t control the ways in which ASE’s employees carried out their work. And as such, they argued that there was dual liability, and that ASE should also be found to be vicariously liable for Mr Warren’s behaviour. However, the Court of Appeal upheld the decision of the High Court; Luminar Leisure was liable for David Hawley’s injuries even though they did not directly employ the doorman who caused them.
Vicarious liability
There is little question as to whether Employers are vicariously liable for the negligence of their direct employees if the negligence was committed in the course or scope of the employment. But in a situation where an employer provides a temporary employee to a subcontractor, as in the Hawley V Luminar Leisure case, it is the responsibility of the temporary employer to show that it is not vicariously liable and not just assume that the responsibility is held by the main employer.
Because Luminar was in overall charge of security; its management exercised detailed control over what the doormen did but how they were supposed to do it, the doormen were all part of the Luminar team, and that all of them wore the club’s uniform. It decided which customers to admit, which to exclude and which to reject. On that basis, the court said that Luminar had control of and responsibility for ASE’s employees, by virtue of the contractual provisions. It was Luminar who was “entitled and therefore obliged to control Mr Warren’s act so as to prevent it”.
What this means for you
Despite what might seem obvious, that a temporary employee remains the responsibility of its direct employer, your company can still be deemed vicariously liable for the negligent acts of that employee where you are considered to be the employee’s “deemed temporary employer”.
Although ASE employed, paid and had the power to dismiss Mr Warren, it was Luminar’s management that exercised practical control over the provision of its services.
As an employer of temporary workers with control over their actions, this case may serve as a warning to ensure that the individual concerned is sufficiently trained and properly registered. Carry out the necessary checks into whether he is a suitable person to be temporarily employed as a doorman and ensure he is adequately supervised while on your premises. At the very least, consider obtaining an indemnity from the temporary worker’s main employer to protect you from any vicarious liability you may face following negligence of the hired worker. Because as the Hawley V Luminar Leisure case demonstrates, you may be liable for their actions. Don’t assume that your contractual arrangements will protect you from vicarious liability, because in the event of an incident, the courts will examine not only the contractual arrangements but also the practical implications of employment status and this may just work against you.