Navigating TUPE Transfers and Harassment Claims: A Landmark Ruling

Understanding TUPE: A Brief Overview

 In the intricate landscape of employment law, the Transfer of Undertakings Protection of Employment (TUPE) regulations plays a pivotal role in safeguarding employees' rights during business transfers.

TUPE ensures that employees retain their terms and conditions of employment when the business they work for undergoes a change in ownership or structure.

Moore v Sean Pong Tyres: Unravelling a Unique Scenario

The recent case of Moore v Sean Pong Tyres, heard before the Employment Appeal Tribunal (EAT), sheds light on a distinctive aspect of TUPE transfers — the transfer of liability in cases of harassment.

This case poses a fundamental question: Can liability for harassment transfer under TUPE when the alleged harasser moves to a new employer, and the claimant was not employed at the point of transfer?

The Allegations: Constructive Dismissal and Harassment

In the Moore case, the claimant asserted claims of constructive dismissal and harassment against the respondent.

Following the claimant's resignation, the alleged harasser underwent a transfer from the respondent's company to another entity under TUPE.

A novel challenge emerged as the respondent sought to include this new company as an additional respondent in the harassment claim.

The conventional understanding in harassment claims is that the employer bears liability for the actions of its employees.

However, this case introduced a unique dynamic with the harasser transferring to a different employer under TUPE.

The Respondent's Argument: Transfer of Liability

The respondent argued that responsibility for the harassing employee's conduct should shift to the transferee employer, even though the claimant himself had not undergone a transfer.

This argument raised critical questions about the extent of liability in harassment claims under TUPE, challenging the traditional framework.

Tribunal's Decision: Denial and Timeliness

The tribunal initially denied the respondent's application, asserting that responsibility for the harasser's actions did not transfer.

Additionally, the tribunal highlighted the untimeliness of the respondent's request to add the new company as an extra respondent.

The rejection was based on the standard principle that when an employee does not transfer under TUPE, associated rights and responsibilities do not automatically transfer either.

EAT's Affirmation: Upholding the Standard Position

Upon appeal, the Employment Appeal Tribunal (EAT) aligned with the tribunal's decision.

The EAT reaffirmed the general principle that in TUPE cases, when an employee does not transfer, neither do the associated rights and responsibilities.

The fact that the harasser had transferred did not alter this standard position.

Implications for HR Professionals and Business Owners

This ruling holds significant implications for HR professionals and business owners involved in TUPE transfers and dealing with harassment claims.

It reinforces the understanding that the mere transfer of an employee does not automatically shift liability for past actions, particularly in the context of harassment.

The Moore v Sean Pong Tyres case highlights the intricacies of TUPE transfers and the limitations of liability, especially in the realm of harassment claims.

HR professionals and business owners should heed this ruling to ensure legal compliance and protect the interests of both employers and employees during the intricate process of TUPE transitions.