High Court ruling clarifies what happens under TUPE when employees move jobs but past harm is alleged
407 words, 2 minutes read time.
In the case ABC v Huntercombe (No. 12) Ltd and others, the High Court has ruled that employers cannot pass the blame for their workers’ past mistakes onto a new company just because the staff have been transferred. The decision has important implications for businesses, workers, and anyone affected by workplace negligence.
The Claimant in the case suffered harm while receiving care at a hospital operated by Huntercombe. She claimed that two hospital staff members were responsible. But by the time she took legal action, those two workers had moved to a different company—Active Young People Ltd—through a process known as TUPE.
What is TUPE?
TUPE, short for Transfer of Undertakings (Protection of Employment), is a UK regulation that protects employees when the business or service they work for changes hands. It ensures that workers keep their jobs, pay, and employment terms even when a new employer takes over.
TUPE also means that many of the old employer’s responsibilities—like holiday pay, notice periods, or ongoing grievances—transfer over to the new employer.
But there are limits.
What did the court decide?
The key issue was whether vicarious liability—where an employer is legally responsible for their staff’s actions—also transfers. The Claimant said it should, and argued the new employer should be held responsible for harm caused by staff before the transfer.
The court disagreed. It ruled that TUPE is designed to protect employees, not to make new employers responsible for everything the staff may have done in the past. It said that only legal duties and obligations that exist between the employer and the employee are transferred. Responsibilities for injuries or damage to third parties, like patients or customers, are not.
The court also rejected a previous case, Doane v Wimbledon Football Club, that had suggested the opposite. That earlier case should no longer be followed, it said.
Why it matters
This ruling helps clarify that past liabilities stay with the old employer, even if staff move under TUPE. New employers taking over services or contracts won’t be unexpectedly hit with claims for things that happened before they were in charge.
It also tells Claimants where to aim their legal actions: even if the person responsible has changed employers, the company that employed them at the time of the incident is still the one legally accountable.
By Patrick Harrington
Picture credit: By sjiong – https://www.flickr.com/photos/sjiong/109817932/, CC BY-SA 2.0, https://commons.wikimedia.org/w/index.php?curid=6380215
