TUPE stands for the Transfer of Undertakings (Protection of Employment) Regulations and its purpose is to protect employees if the business in which they are employed changes hands. Its effect is to automatically transfer employees and any legal liabilities from the old employer to the new employer.
A worker brought a tribunal claim alleging that he had suffered harassment and race and age discrimination by a colleague who called him an ‘old white man’ and told him he was lazy and too old to do his job. The worker’s colleagues at the small tyre recycling firm where he was employed, were of Ghanaian decent. Those comments, whereby the worker felt he had been singled out for abuse, eventually led to the worker being signed off work with depression. The employment tribunal found that the comments were not merely banter but behaviour tipped over into hostility and that the employer (who had not taken reasonable steps to prevent it) was liable for it. He subsequently won his claim for race and age discrimination, as well as unfair dismissal at an employment tribunal hearing. His employer was ordered to pay more than £22,000 in compensation.
During this time, the colleague transferred his employment to a new employer under a TUPE transfer. The original employer sought to argue that their responsibility for the discrimination had transferred to the employee’s new employer under TUPE and that they were not primarily liable for paying compensation to their employee.
The Employment Appeal Tribunal rejected this interpretation of the TUPE Regulations and found that the primary liability to the employee who had suffered discrimination and was unfairly dismissed did not transfer when the perpetrator’s employment transferred. The employee who had brought the tribunal claim had no employment relationship with the perpetrator’s new employer.
The Employment Appeal Tribunal ruled that the purpose of the TUPE regulations, is for the employee’s rights and the employer’s obligations connected with a transferring employee's contract of employment to transfer with that employee to the new employer. It is not the purpose of TUPE for the rights and obligations in connection with a non-transferring employee (in this case the employee who had brought the employment tribunal claim and remained an employee of the original employer) to transfer.
As this case demonstrates, what may seem like workplace banter to the perpetrator may in fact amount to unlawful harassment of an employee on the basis of a protected characteristic. An employer may be legally liable for the harassment if they are unable to show they took reasonable steps to prevent it.