Can liability for harassment transfer under TUPE, where the harasser transfers under TUPE and the Claimant was not employed at the point of the transfer?
No, held the EAT in Moore v Sean Pong Tyres.
The Claimant claimed constructive dismissal and harassment against the Respondent. After the Claimant resigned, the alleged harasser had transferred from the Respondent to another company under TUPE. The Respondent wanted to add this company as an extra Respondent. The argument was a novel one – in harassment claims the employer is generally liable for the harassing acts of its employees. Here, the harassing employee had transferred to a new employer under TUPE.
The Respondent argued that liability for the harassing employee’s conduct should transfer to the transferee employer, even though the Claimant himself had not transferred. The tribunal refused the application. They said that responsibility didn't transfer and even if it did, the Respondent's request was too late.
The Respondent appealed the tribunal's decision. The EAT agreed with the tribunal. Usually, when an employee doesn't transfer under TUPE, rights and responsibilities towards them don't transfer either. The fact that the harasser had transferred did not alter this position.
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