Gary Lewis v Dow Silicones UK Limited
[2024] EAT 51
Sean Pong Tyres Limited v Barry Moore (debarred)
29 January 2024
[2024] EAT 1
Employment Appeal Tribunal
A company was sued for unfair dismissal and harassment. They tried to shift blame to a new company they'd transferred their business to (TUPE). The judge said they couldn't because the employee who was suing hadn't moved to the new company. The judge also said the company should've mentioned this transfer much earlier. The original ruling against the company was upheld.
Key Facts
- •Sean Pong Tyres Limited (respondent/appellant) was sued by Mr. Barry Moore (claimant/respondent) for unfair constructive dismissal and harassment.
- •The harassment was allegedly perpetrated by Mr. Owusu, who was not a respondent.
- •Sean Pong Tyres Ltd. argued that a TUPE transfer of its business to Credential on July 1, 2021, transferred liability for the claims to Credential.
- •The Employment Tribunal refused Sean Pong Tyres Ltd.'s application to amend its response to include this TUPE argument.
- •The Tribunal found in favour of Mr. Moore on both claims.
- •Mr. Moore was debarred from the appeal.
Legal Principles
TUPE Regulations (SI 2006/246) only transfer liability for unfair dismissal if the claimant's employment transferred or if they were unfairly dismissed before the transfer for reasons connected to it.
Humphreys v Oxford University [2000] ICR 405
An employer's primary liability under sections 39 and 40 of the Equality Act 2010 does not transfer under TUPE even if the liability is partly based on vicarious liability for an employee's actions that did transfer.
This case (Judge Stout's interpretation)
Selkent principles apply to amendment applications, balancing the prejudice to all parties. Factors considered include the nature of the amendment, time limits, and timing of the application.
Selkent Bus Company v Moore [1996] ICR 836
Time limits generally don't apply when adding or changing parties to proceedings.
Drinkwater Sabey Ltd v Burnett [1995] ICR 328
In claims under the Equality Act 2010, an employer's primary liability is not simply derived from vicarious liability for the actions of an employee. A connection must be established between the employer's conduct and the discrimination or harassment claim.
Reynolds v CLFIS (UK) Ltd [2015] EWCA Civ 439
The EAT will not generally interfere with a Tribunal's case management decisions unless an error of law is evident.
Vaughan v Modality Partnership [2021] ICR 535
Outcomes
Appeal dismissed.
The Tribunal correctly refused the amendment application. Even if the TUPE transfer occurred, Sean Pong Tyres Ltd.'s liability would not have transferred to Credential because Mr. Moore's employment did not transfer, and the employer's primary liability under the Equality Act 2010 does not transfer under TUPE in these circumstances.
Employment Tribunal's decision upheld.
The Tribunal properly applied the Selkent principles when assessing the amendment application, correctly balancing the prejudice to both parties and considering the lateness of the application.