TUPE does not transfer liability for discrimination to new employer where perpetrator transfers but claimant does not (EAT)

James Williams

Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), following a relevant transfer, all of the former employer’s “rights, powers, duties and liabilities under or in connection with” the transferring employees’ contracts pass to the new employer (regulation 4(2)(a), TUPE).

In the case of Sean Pong Tyres Ltd v Moore [2024] an employee resigned and brought a claim against his former employer for discrimination and harassment perpetrated by a colleague. The perpetrator subsequently transferred to a new employer under TUPE, and the previous employer sought to argue that its liability had transferred, under TUPE, to the new employer.

The EAT held that, where a claimant brings a harassment claim against their former employer, and the perpetrator then transfers to a new employer under TUPE (but the claimant does not), the claimant’s employer remains liable. Liability under the Equality Act 2010 does not transfer unless the claimant also transfers.

For the purposes of regulation 4(2)(a) of TUPE, the rights and obligations under the EqA 2010 arose “in connection with” the employment contract of the claimant, who had not transferred, rather than the contract of the alleged perpetrator.

Sean Pong Tyres Ltd v Moore (Debarred) [2024] EAT 1 (29 January 2024)

James Williams – Solicitor

James Williams

I am a qualified Employment Law and HR Solicitor. I specialise in acting for schools and advise on all aspects of employment law and HR including attending employee meetings, advising senior leaders, conducting redundancy consultations, drafting contracts of employment, advising on policies and procedures and negotiating settlement agreements.