United Kingdom: TUPE - Discrimination liabilities transfer with the victim, not the discriminator

In brief

The EAT has decided that an employer's liability for unlawful discrimination does not transfer under TUPE where the discriminator transfers but the victim of the discrimination does not. The position might be different though in relation to vicarious liability for negligent (rather than discriminatory) acts of an employee. 


In more detail 


Employee M was employed by SPT Ltd. He suffered discrimination and harassment by colleague O, leading to his unfair, constructive dismissal. SPTs business, including O, subsequently transferred to X, which was said to be a TUPE transfer. This led to the question: had the liability for the discrimination remained with SPT, or had it had transferred to X despite the fact that M had not TUPE transferred? The answer required analysis of the mechanics of the Equality Act 2010 (EqA), as well as the TUPE Regulations.

Relevantly, the EqA provides that:

  • An employer must not discriminate against an employee or harass them (sections 39 and 40). 
  • An employee who perpetrates discrimination or harassment against a colleague will be individually liable (section 110).
  • The employer is vicariously liable for its employees' acts of discrimination / harassment perpetrated in the course of employment, subject to a potential defense that the employer took all reasonable steps to prevent the discrimination / harassment (section 109). 

Where both the employer and the individual discriminator / harasser are successfully sued for the same acts, they are jointly and severally liable.

Under TUPE, all of the transferor employer's rights, powers, duties and liabilities under or in connection with a transferring employee's contract of employment transfer to the transferee. 

The issue in this case boiled down to whether SPTs liability for discrimination / harassment was connected to M's contract of employment (as the victim) or O's (as the culprit).


At tribunal, SPT argued that the legal basis for its alleged liability to M for the discrimination and harassment was entirely dependent on O's personal liability (under section 110 EqA), for which SPT was vicariously liable (under section 109 EqA). This, it said, meant the liability arose in connection with O's employment within the meaning of TUPE and so had automatically transferred to X. 

The EAT disagreed, for several reasons. It identified that, in addition to the individual and vicarious liability provisions in sections 109 and 110, the EqA  creates a distinct, primary liability on the employer under sections 39 and 40. This primary liability is not strictly dependent on an individual discriminator's personal liability. As such, the EAT concluded that the liability arose in connection with M's employment, not O's. Since M had not transferred, neither had the liability for the discrimination and harassment he had suffered. 

The EAT contrasted a non-binding County Court decision dealing with a negligence claim (Doane v Wimbledon Football Club and others, 2007). In that case, a footballer had suffered a personal injury allegedly caused by the negligent tackle of a Wimbledon FC player. Wimbledon FC, including the allegedly negligent player, TUPE transferred to MK Dons and the court found that the liability for negligence transferred with him. The EAT considered the court's analysis to be "highly persuasive", but concluded it engaged different legal principles. In Doane, the negligence claim was brought on the basis of Wimbledon FC's vicarious liability. As this was a secondary liability it could properly be described as arising in connection with the wrongdoer's employment, and therefore capable of transferring under TUPE. In contrast, the EAT was dealing with an employer's primary liability under the EqA.

The EAT was in part persuaded by issues to do with how liability is shared between wrongdoers. In the negligence scenario, if an individual wrongdoer is ordered to pay compensation, they can claim a contribution from their employer, and vice versa. It is different under the EqA under current case law: there is currently no right to claim a contribution. The EAT concluded that this points to there being a package of rights and liabilities in the negligence scenario, which means they should all transfer under TUPE to protect the position of the employee who is transferring, whereas the rights and liabilities under the EqA are separate. 


As it stands, a transferee won't inherit liability for the discriminatory acts of a transferring employee unless the victim of the discrimination also transfers. (If the victim doesn't transfer, the liability remains with the transferor.) However, the decision suggests that a transferee will inherit the vicarious liability for the negligent acts of a transferring employee, regardless of whether the victim of the negligence has transferred. 

There is very little case law on the issues in this case and it seems apt for further judicial consideration, balancing multiple legal nuances and policy considerations. It reinforces the longstanding best practice for a TUPE scenario, namely, a transferee should carry out appropriate due diligence in relation to the liabilities which might transfer and seek appropriate protection through warranties and indemnities.

Sean Pong Tyres Ltd v Moore, EAT.

Contact Information

Copyright © 2024 Baker & McKenzie. All rights reserved. Ownership: This documentation and content (Content) is a proprietary resource owned exclusively by Baker McKenzie (meaning Baker & McKenzie International and its member firms). The Content is protected under international copyright conventions. Use of this Content does not of itself create a contractual relationship, nor any attorney/client relationship, between Baker McKenzie and any person. Non-reliance and exclusion: All Content is for informational purposes only and may not reflect the most current legal and regulatory developments. All summaries of the laws, regulations and practice are subject to change. The Content is not offered as legal or professional advice for any specific matter. It is not intended to be a substitute for reference to (and compliance with) the detailed provisions of applicable laws, rules, regulations or forms. Legal advice should always be sought before taking any action or refraining from taking any action based on any Content. Baker McKenzie and the editors and the contributing authors do not guarantee the accuracy of the Content and expressly disclaim any and all liability to any person in respect of the consequences of anything done or permitted to be done or omitted to be done wholly or partly in reliance upon the whole or any part of the Content. The Content may contain links to external websites and external websites may link to the Content. Baker McKenzie is not responsible for the content or operation of any such external sites and disclaims all liability, howsoever occurring, in respect of the content or operation of any such external websites. Attorney Advertising: This Content may qualify as “Attorney Advertising” requiring notice in some jurisdictions. To the extent that this Content may qualify as Attorney Advertising, PRIOR RESULTS DO NOT GUARANTEE A SIMILAR OUTCOME. Reproduction: Reproduction of reasonable portions of the Content is permitted provided that (i) such reproductions are made available free of charge and for non-commercial purposes, (ii) such reproductions are properly attributed to Baker McKenzie, (iii) the portion of the Content being reproduced is not altered or made available in a manner that modifies the Content or presents the Content being reproduced in a false light and (iv) notice is made to the disclaimers included on the Content. The permission to re-copy does not allow for incorporation of any substantial portion of the Content in any work or publication, whether in hard copy, electronic or any other form or for commercial purposes.