Hawley v Luminar Leisure plc

Hawley v Luminar Leisure plc
Court of Appeal

Status of agency workers

Luminar owns and operates a number of clubs throughout the UK. It contracted with ASE Security Services (ASE) for “the provision of security services” at a nightclub. The relevant contract between Luminar and ASE provided for the supply of “door supervisors”.

One of the doormen was Mr Warren. Following an incident outside the nightclub, Warren punched Mr Hawley, causing significant and permanent brain damage.

Warren was convicted for the offence and Hawley issued proceedings for negligence against both Luminar, the company which owned the nightclub, and ASE, which employed and supplied the doormen.

The parties conceded that Warren had been acting in the course of his employment, but the issue was whether or not he was a ‘temporary deemed employee’ of Luminar, making it vicariously liable for his actions.

Vicarious liability

Employers are vicariously liable for the negligence of their employees. In a situation where a “general” employer provides an employee to a “temporary” employer, it is for the general employer to show that it is not vicariously liable, and the burden is a heavy one.

In this case, the Court of Appeal upheld the decision of the High Court – that a nightclub exercised sufficient control over the actions of a doorman supplied to it by a security company to deem the nightclub his “temporary” employer for the purposes of vicarious liability

Key points

• A company can be vicariously liable for the negligent acts of another company’s employee where it can be shown to be the employee’s “deemed temporary employer” for the limited purpose of establishing vicarious liability.
  
• Although ASE employed, paid and had the power to dismiss doormen, for all practical purposes, Luminar’s management exercised control over the provision of their services. There was sufficient evidence that Luminar was Warren’s temporary employer.

What you should do

• Be aware that if you hire temporary workers and control what they do, you may be liable for their actions. An organisation that does not directly employ those who work on its behalf does not necessarily escape liability.
  
• Make sure you properly train and supervise your hired staff.
  
• Don’t assume your contractual arrangements will protect you from vicarious liability. The courts always look beyond strict contractual arrangements to examine what actually happens in practice when determining employment status. To address the risk, consider obtaining an indemnity from the worker’s general employer (in respect of vicarious liability you may face following negligence of the hired worker).