The Employment Appeal Tribunal (EAT) has held in Sean Pong Tyres Ltd v Moore that TUPE does not transfer an employer's liability for discrimination where the perpetrator of the harassment transfers under TUPE but the claimant does not.
The claimant was employed by Sean Pong Tyres Ltd (SP Tyres) until he resigned in April 2021. In June 2021 he brought a claim alleging that he had suffered harassment and discrimination perpetrated by a colleague, Mr O, for which SP Tyres was responsible. He also brought a claim for constructive unfair dismissal. In July 2021 Mr O transferred to another company, Credential, in what SP Tyres argued was a TUPE transfer. On the first day of the hearing SP Tyres applied to amend its response to argue that its liability for the claims had transferred to Credential, and to add Credential as a party to the proceedings. The employment tribunal refused the application to amend.
On appeal the EAT held that the claimant had resigned well before TUPE and for reasons unconnected with the transfer and so, for the purposes of his unfair discrimination claim, his employment was at all times with SP Tyres. In relation to the discrimination claim the EAT held that under the Equality Act 2010 an employer is liable to its employee if it discriminates against them or harasses them and so liability could only arise "in connection with" the employer's contract with the claimant. The EAT concluded that it is not the purpose of TUPE for the rights and obligations in connection with a non-transferring employee to transfer. In order to construe TUPE as having transferred liability to Credential, the claimant would have had to bring a claim against Credential with whom he had no employment relationship.
Take note: Following the decision in Sean Pong Tyres it's clear that liability for discrimination where the alleged perpetrator transfers to a new employer but the claimant does not will not pass to the transferee.
