Sean Pong Tyres Ltd v Mr Barry Moore (De-Barred)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Stout |
| Court | Employment Appeal Tribunal |
| Published date | 29 January 2024 |
Judgment approved by the court for hand down Sean Pong Tyres Limited v Mr Barry Moore (De-Barred)
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Neutral Citation Number: [2024] EAT 1
Case No: EA-2022-000617-JOJ
EMPLOYMENT APPEAL TRIBUNAL
Rolls Building
Fetter Lane, London, EC4A 1NL
Date: 29 January 2024
Before :
JUDGE STOUT
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Between :
Sean Pong Tyres Limited Appellant
- and –
Mr Barry Moore (debarred) Respondent
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Mr McFarlane (instructed by Peninsula Business Services Ltd) for the Appellant
No appearance or representation for the Respondent
Hearing date: 20 December 2023
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JUDGMENT
Judgment approved by the court for hand down Sean Pong Tyres Limited v Mr Barry Moore (De-Barred)
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SUMMARY
TRANSFER OF UNDERTAKINGS, PRACTICE AND PROCEDURE
The Employment Tribunal upheld the claimant’s (C’s) claims for unfair constructive dismissal under
the Employment Rights Act 1996 (ERA 1996) and harassment under the Equality Act 2010 (EA
2010). Both claims were brought against C’s former employer (R) but were based factually on
harassment by an individual (X), although X was not a respondent to the claim. At the start of the
final hearing, R applied to amend its response to argue that, owing to what was said to be a subsequent
transfer of the business under The Transfer of Undertakings (Protection of Employment)
Regulations 2006 (SI 2006/246) (TUPE), the employment of X had transferred to a new company
(Y) and that, by virtue of reg 4 of TUPE, R’s liability for C’s claims had transferred to Y. The
Tribunal refused R’s amendment application and went on to find in favour of C on both the ERA
1996 and EA 2010 claims.
HELD: - Dismissing the appeal,
(1) As C’s employment had not transferred to Y, he not having been employed at the time of the
putative transfer or having been unfairly dismissed prior to the transfer for reasons connected
with it, R’s liability under the ERA 1996 could not have transferred to Y (Humphreys v
Oxford University [2000] ICR 405 applied);
(2) Nor does R’s primary liability to C under s 40 of the EA 2010 transfer to Y in such
circumstances, notwithstanding that establishment of that liability may depend in part on R
being vicariously liable for the actions of X by virtue of s 109 of the EA 2010;
(3) Any error in the Tribunal’s handling of the amendment application was not therefore a
material error because it could not have made any difference to the outcome;
(4) In any event, the Tribunal was in the circumstances right to approach the amendment
application in accordance with the usual Selkent principles; R’s TUPE point was, at best, a
potential defence that it should have raised earlier in the proceedings; the Tribunal was right
to regard it as not being a ‘jurisdictional’ issue; the Tribunal had otherwise properly exercised
Judgment approved by the court for hand down Sean Pong Tyres Limited v Mr Barry Moore (De-Barred)
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its case management discretion to refuse the amendment application.
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