Jurisdiction(s):
United Kingdom

Sean Pong Tyres v Moore: EAT holds TUPE does not transfer employer's primary EqA harassment liability where claimant left pre-transfer, even if alleged harasser transfers

Published on: 06 February 2024

Published by a LexisNexis Employment expert

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Article summary

Sean Pong Tyres v Moore [2024] EAT 1 What are the practical implications of this judgment?

This judgment addresses a novel issue about the reach of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006) where an employee brings a claim under the Equality Act 2010 (EqA 2010) for harassment against their employer, and, after the acts complained of, there is a TUPE transfer. Under that transfer, the alleged individual employee perpetrator — potentially answerable to the claimant under EqA 2010, s 110(1) — moves to the new employer (the transferee), yet the claimant’s own employment does not transfer. The practical takeaway for practitioners is the tribunal’s conclusion that the transferor employer’s primary liability to its employee for that harassment does not pass to the transferee employer if the claimant’s employment fails to transfer for reasons that are not connected with the transfer. By way of illustration, as here, where the employment relationship had already ended before the transfer for unrelated reasons, that primary liability remains with the transferor and does not migrate under TUPE. The case clarifies when EqA 2010 liabilities will follow under TUPE, and when not...

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