TUPE; the Directive aims to safeguard employee rights in the event of a change of employer. [Summary not yet checked against the judgment.]
TUPE; purpose of the Acquired Rights Directive; dismissal on transfer. Heard with British Fuels Ltd v Baxendale. Employees dismissed on or before a transfer and re-engaged by the transferee on worse terms argued that the dismissals were a nullity so the old terms continued. The House of Lords (Lord Slynn of Hadley giving the leading speech) held that a dismissal by reason of a transfer is effective though automatically unfair: neither the Directive nor the Regulations create a right to continue in employment that national law does not provide. Lord Slynn's formulation of the Directive's purpose at 83H-84A, that the existing rights of employees are safeguarded so that the employee can look to the transferee to perform the obligations the employee could have enforced against the transferor, 'no more and no less', was adopted in ABC v Huntercombe [2026] EWCA Civ 1161 at [31] as the starting point for construing reg 4(2)(a). [Summary not yet checked against the judgment.]
Cited by
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
TUPE; relevant transfer; economic entity; multi-factorial test. The EAT distilled the ECJ and domestic case law into guidance on what amounts to a relevant transfer, dividing the considerations between those going to whether there is an identifiable economic entity and those going to whether that entity has transferred, and advising tribunals to take the two questions separately and in that order, a tribunal which does not so running 'a real risk of error'. The guidelines are a summary of a multi-factorial assessment, not a checklist. The factors they gather, the type of undertaking, transfer of tangible and intangible assets, whether the majority of staff are taken over, transfer of customers, similarity of activities and any interruption in them, cannot be considered in isolation: no single factor is decisive and not all need be satisfied. The approach was approved in Hunter v McCarrick. [Summary not yet checked against the judgment.]
Approved by McCarrick v Hunter [2012] EWCA Civ 1399 (2012-10-30)
Cited by
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
TUPE; transfer of tortious liability to an employee; 'in connection with'. An employee injured at work by his employer's negligence transferred under TUPE and sued the transferee. The Court of Appeal (Peter Gibson LJ) held, starting from the purpose of the Acquired Rights Directive, that the transferor's liability in tort to the transferring employee arises 'in connection with' the contract of employment and passes to the transferee under reg 5(2)(a) of TUPE 1981 (now reg 4(2)(a) of TUPE 2006): the phrase is wider than contractual claims. The liability transferred was the employer's own direct liability to its employee; the case does not decide that vicarious liability to a third party transfers, and ABC v Huntercombe [2026] EWCA Civ 1161 at [64]-[67] explains it on that footing. [Summary not yet checked against the judgment.]
Cited by
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
TUPE; Vicarious liability; joined appeal with Martin v Lancashire. Established that liability under the Occupiers' Liability Act 1957 arising from the transferor's employment relationship would transfer where there was sufficient connection with the contract of employment. [Summary not yet checked against the judgment.]
Cited by
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
TUPE; transfer of a transferor's vicarious liability in tort to a third party; "under or in connection with" the contract of employment; reg.5(2)(a) of TUPE 1981 (now reg.4(2)(a) of TUPE 2006). Mr Doane, then playing for Sheffield United, was injured in an allegedly negligent tackle by Darren Holloway, then a Wimbledon FC player, whose employment later transferred under TUPE to Milton Keynes Dons. [Summary not yet checked against the judgment.]
Disapproved by ABC v Huntercombe (No. 12) Ltd [2026] EWCA Civ 1161 (2026-09-08)
TUPE; dismissal; dismissal by administrators to make the business more saleable is not an ETO reason.
TUPE; service provision change; the same client throughout. An employee managing a property portfolio moved, via the outsourcing of that work, from Waterbridge to WCP and then, when receivers appointed by the mortgagee took control of the properties, into the personal employment of Mr Hunter, who supplied the team to the receivers' agents. The Court of Appeal (Elias LJ) held there was no service provision change under reg 3(1)(b): 'the client' in reg 3(3)(a) refers to a specific client, and the provision presupposes the same client throughout, whether the change is outsourcing, a change of contractor or bringing the work back in house. The regulation is domestic legislation, not implementing EU law, and is not to be given an artificial or expanded meaning [22]-[23], [37], [39]. Whether reg 3(1)(a) applied could not be inferred from the transfer of an organised group of employees alone; a transfer of an undertaking is a different concept requiring the multi-factorial assessment [45]-[46]. Appeal dismissed [49]. [Summary not yet checked against the judgment.]
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
TUPE; transfer of liability for harassment; time limits; conduct extending over a period. A sales manager at Port Vale FC was harassed by a colleague; her employment transferred under TUPE to Azure Support Services Ltd on 4 July 2011, the harasser stayed with the club, and the harassment continued after the transfer. The club, in liquidation, was vicariously liable for the pre-transfer acts. On appeal it was conceded that, but for time limits, the club's liability passed to Azure by the transfer, because the claimant's contract had moved. The EAT (HHJ Jeffrey Burke QC) rejected the argument that time began to run from the transfer date: the pre- and post-transfer harassment was conduct extending over a period under s.123(3) of the Equality Act 2010, so the claim against the transferee was in time; time could in any event have been extended on the just and equitable basis. Illustrates the row of the ABC v Huntercombe grid in which the victim transfers and the liability follows her, whoever the wrongdoer was. [Summary not yet checked against the judgment.]
TUPE; Vicarious liability; rejected the view that a third party could sue the transferee based on secondary liability arising from the actions of an employee whose contract of employment has been transferred. The liabilities to which TUPE refers in Reg 4(2)(a) are liabilities owed to the person transferred, not liabilities owed to third parties. [Summary not yet checked against the judgment.]
TUPE; transfer of tortious liability; reg 4(2). An electrical engineer whose employment transferred under TUPE was electrocuted after the transfer because of a wiring defect his former employer had negligently failed to detect on a periodic inspection before it. The High Court (Amanda Yip QC sitting as a Deputy High Court Judge) held that the transferor's liability for the injury passed to the transferee under reg 4(2): tortious liabilities transfer whether accrued or contingent at the date of transfer, and an act or omission of the transferor before the transfer is deemed the transferee's under reg 4(2)(b). Explained in ABC v Huntercombe [2026] EWCA Civ 1161 at [62]-[63] as a liability owed to the transferring employee himself, of the kind reg 11 employee liability information would disclose. [Summary not yet checked against the judgment.]
Cited by
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
TUPE; automatically unfair dismissal; reason for dismissal. The Court of Appeal dismissed the transferee's appeal. Under reg 7(1) TUPE 2006 the question is whether the transfer was the sole or principal reason for the dismissal, a question of fact for the tribunal [23]. The employee was dismissed on the eve of the transfer because the transferee did not want her, its reason being her poor relationship with a colleague about to become a director. That the reason was personal to her did not defeat the claim: the tribunal was entitled to find that the transferee's unwillingness to take her on, rather than the relationship with the transfer as mere coincidence of timing, was the principal reason [20], [23], [25]. TUPE is not a 'but for' jurisdiction; the dicta in Smith v Brooklands College do not assist [22]. [Summary not yet checked against the judgment.]
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
TUPE; benefits; Share Incentive Plans (SIPs) transfer under TUPE even if they arise from a separate contract to the employment contract.
TUPE; service provision change; analysis of whether activities are 'fundamentally the same' pre- and post-transfer.
TUPE; transfer of liability; discrimination by a transferring employee. The EAT (Judge Stout) held that an employer's liability under ss.39 and 40 of the Equality Act 2010 for discrimination and harassment by one of its employees is a primary liability, not a vicarious one, so it does not pass to a transferee under reg 4(2)(a) merely because the perpetrator's employment transferred; the same applies to liability for the resulting constructive dismissal [32]-[33]. Doane v Wimbledon FC, a county court decision that a transferor's vicarious liability in negligence transfers with the tortfeasor, was persuasive on its own facts but does not govern statutory liability under the 2010 Act [30]-[32]. The victim, whose own employment had not transferred, keeps his claim against the original employer. The employer's appeal against the refusal of its late amendment to plead the transfer was dismissed [47]. [Summary not yet checked against the judgment.]
“even if there was a TUPE transfer from the respondent to Criterion, and Mr Owusu's employment transferred, the respondent's (primary) liability to the claimant in this case both under the ERA 1996 and under the EA 2010 would not have transferred to Criterion.”Judge Stout, at [33]
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
TUPE; vicarious liability; reg 4(2)(a); 'in connection with'. A former psychiatric in-patient sued the hospital operator, H Ltd, for the alleged torts of employees whose employment later transferred under TUPE to AYP Ltd; H Ltd was in liquidation with a £250,000 per-claim insurance deductible. The Court of Appeal (Coulson LJ, Bean LJ and Sir Launcelot Henderson agreeing) held that reg 4(2)(a) does not extend to the transferor's vicarious liability to third parties for the pre-transfer acts and omissions of employees [73]. The Regulations are construed from the purpose of the Acquired Rights Directive, which is to safeguard employees' rights [25]-[35]: vicarious liability is a secondary liability parasitic on the employee's own, gives the employee no right or protection (the employer holds a Lister v Romford indemnity) [43]-[49], so does not arise 'in connection with' the contract [51]; reg 11 requires disclosure of employee claims only, so Parliament deliberately left third-party claims outside the scheme [52]-[54]; and a third party suing a transferee for events it had no part in would need clear permissive words, of which there are none [57]. Doane v Wimbledon FC disapproved [50]; Martin/Bernadone and Baker v British Gas explained as liabilities owed to the transferring employee [62]-[67]. The High Court's 'direct' and 'fundamental' formulations were dropped as apt to generate argument [68], [73]. At first instance HHJ Bird had reached the same result on a preliminary issue, [2025] EWHC 1000 (KB). [Summary not yet checked against the judgment.]
“I conclude that the meaning ascribed to Regulation 4 by Mr Fetto, that the transferor's vicarious liability owed to a third party is transferred to the transferee, is inconsistent with the purpose of the Directive. Insofar as it makes the transferee liable for something it had no way of knowing about and no entitlement to know anything about under the Directive and the TUPE 2006 Regulations, I consider that it is contrary to both.”Lord Justice Coulson; Lord Justice Bean; Sir Launcelot Henderson, at [58]
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.