TUPE

Jeffrey Jupp's TUPE resource

Vernon v Azure Support Services Ltd EAT – 11 November 2014

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The Issue

This case raised issues both of an employer’s liability for statutory torts committed before a TUPE transfer and the time limits for bringing claims where the act predates the transfer. (The case also raises other issues not considered here.)

The Facts

V was employed by R2 (‘Port Vale FC’). V’s employment was then transferred under TUPE to R1 (‘Azure’).   R3 (‘B’) was also employed by Port Vale FC, but he was not the subject of any TUPE transfer, and worked throughout at the same location as V. B  harassed V before and after the TUPE transfer. The ET held that Port Vale FC was vicariously liable for B’s acts whilst V was employed by it. 

The ET held that V could not recover from Azure in respect of B’s harassment before the transfer of her employment to Azure.

The EAT Judgment

All parties before the EAT accepted that, as a matter of lawthat Reg 4(2) transferred Port Vale FC’s liability for harassment to Azure.

However, Azure continued to assert a time limit defence. Under the Equality Act 2010, s. 123, proceedings must be brought within 3 months of the date of the act to which the complaint relates, or such other period as the ET thinks just and equitable. R1’s argument was that the position was analogous to the rule under the Equal Pay Act 1970, s. 2(4)  (See Sodexho v Gutridge), which meant that V’s pre-transfer claims had to be brought within 3 months of the transfer because the “continuing nature of B’s conduct was stopped in its tracks by the transfer”.

The EAT dismissed this argument. The limitation regime for equal pay claims is very different to discrimination or harassment claims. When time started to run was not determined by when the employment of V ended. Where the conduct complained of constitutes a continuing act which extends after the transfer, as in this case, time does not start to run in respect of pre-transfer harassment until the continuing act ends. Azure was therefore liable for the pre-transfer harassment.

 Link to judgment

Comment

The interesting point in this case is that the employee could not bring a claim against the transferee for harassment she continued to suffer after the transfer because the harasser was not employed by the transferee.  But that fact did not stop time running.  It is not difficult to imagine a case where the transferee has no knowledge of, or control over, continuing harassment but nevertheless will be held liable for pre-transfer harassment a long time after the transfer if that harassment has continued.

 

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