Background: 

The claimant resigned in April 2021 and subsequently brought claims for unfair dismissal and harassment which he said had been perpetrated by another employee at the company.   In January 2022 the case went to hearing and the respondent brought an application to amend its response stating that the business had been subject to a TUPE transfer along with the employment of the employee alleged to have committed the harassment.   The argument being that the liability for the claims had transferred to the new company.  

Outcome: 

At first instance, the Tribunal held that it was not for the new company to have liability.  The EAT agreed.  They stated that for the unfair dismissal the employee had resigned well before the TUPE transfer had ever taken place.  As a result, his employment was only ever with his employer and the claim lay there as had been held in Oxford Uni v Humphreys [2001]. 

On the issue of the TUPE and the vicarious liability of the employer regarding harassment it was held that the primary liability was one that the employer owed to the claimant employee and arose in connection with the employer’s contract with the claimant.  It did not then transfer through the TUPE. Accordingly, the appeal was dismissed. 

Practical Guidance for Employers: 

The transfer of undertakings can cause problems in relation to where the liability falls.  In this case, the EAT made it clear that for the dismissal it would rest with the transferor on the basis that they were the employer at all times and it was sometime after that the transfer took place.  Additionally, the vicarious liability did not pass under the Employment Rights Act 1996 or the Equality Act 2010.              

The full case is available here:
https://www.gov.uk/employment-appeal-tribunal-decisions/sean-pong-tyres-ltd-v-mr-barry-moore-de-barred-2024-eat-1