Where a business changes ownership or service provider, the TUPE regulations operate to provide protection for employees. Where there is a relevant transfer, the automatic transfer principle applies in order to automatically transfer those individuals' contracts of employment from the outgoing employer (transferor) to the new employer (transferee). The transferring employees' terms and conditions of employment will be preserved. All of the transferor's "rights, powers, duties and liabilities under or in connection with" the transferring employees pass to the transferee.
In the case of Sean Pong Tyres Ltd v Moore, the claimant resigned and brought claims for unfair dismissal, discrimination and harassment. The harassment claim related to the conduct of one of the claimant's colleagues towards the claimant prior to his resignation.
On the first day of the three day final hearing for the claim, the respondent said that the alleged perpetrator's employment had since transferred under TUPE to a new employer, and that its liability for the claims had therefore also transferred. On this basis, the respondent made an application to amend its response to the claims, which the Tribunal rejected. The respondent appealed to the EAT.
The EAT dismissed the appeal, finding that:
This claim acts as a useful illustration of how an employer's liabilities might transfer or not, depending on which employees are in scope of a TUPE transfer. It is helpful to consider to which employee a particular right or obligation attaches. If not the employee who is transferring, then the responsibility is likely to remain with the original employer. It is not the purpose of TUPE for rights and obligations in connection with a non-transferring employee to transfer.