Does a harassment claim transfer to a new employer?

A recent Employment Appeal Tribunal case covers the question of whether liability for harassment transfers under TUPE 

In a recent claim, the Employment Appeal Tribunal considered the effect of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) on an employer’s liability for harassment where the employee harasser’s employment is transferred under TUPE.

Facts

The employee in this case, Mr Moore,  was employed by the Employer, Sean Pong Tyres until he resigned in April 2021 and in June 2021, he brought a claim against the Employer for constructive unfair dismissal following harassment and discriminatory treatment received by a fellow employee.

The harasser’s employment was transferred under TUPE in July 2021. During the course of the claim and prior to the final hearing, the employer failed to mention that the harasser’s employment had been transferred via TUPE to another employer. However, on the first day of a three-day hearing, the employer made an application to amend its response to include the argument that liability for the claims had transferred to the new employer and that the new employer should be added to the proceedings as a second respondent.

In the first instance, the Employment Tribunal refused the application on the basis that it was a very late application to make and if allowed, it would cause a major delay in the proceedings for the new respondent to submit its defence, notwithstanding the prejudice to Mr Moore. Furthermore, the employer failed to provide a fair reason for not raising the argument before.

The employer appealed to the Employment Appeal Tribunal (EAT) seeking to argue that the liability of an employer to a claimant employee under the Equality Act 2010 transferred to the new employer where the harasser’s employment was transferred under TUPE even if the claimant did not transfer.

Outcome

The Employment Appeal Tribunal agreed with the Tribunal’s findings. The Appeal Tribunal held that Sean Pong Tyres had primary liability under the Equality Act 2010 and in the circumstances, it did not transfer to the harasser’s new employer. They also clarified that the rights and obligations under the Equality Act 2010 applied in connection with the employment contract of the claimant employee (Mr Moore) and not the harasser. Mr Moore’s employment had not transferred and so Sean Pong Tyres remained liable, and it did not bear any relevance that the harasser’s employment had transferred.

Points to Note

If you are an employer considering a TUPE transfer or are currently going through one, it is important to consider the position of liability on potential claims.

If on the flip side, you are an employee considering a claim, it is important that you carefully consider who you will submit your claim against as it may be difficult to change this further down the line.

Employer or employee, if you are unsure about the impact of a TUPE transfer, please do feel free to get in touch with a member of the team.

You can read the full judgment in this case here: 

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