ABC v Huntercombe: when a failing hospital changes hands and the law looks the other way

Sometimes a case doesn’t just expose a bad institution—it exposes a hole in the law. ABC v Huntercombe (No.12) Ltd & Ors [2026]EWCACiv1161 is exactly that. It’s about a young woman, a failing psychiatric hospital in Maidenhead, a change of ownership, and a legal system that ultimately tells her: you may have been wronged, but you may never be compensated.

This is the Court of Appeal’s decision, in plain English, with the BBC’s reporting and the judgment woven together.

The hospital, the patient, and the transfer

Huntercombe Hospital in Maidenhead was a privately run psychiatric facility for young people. At the time relevant to this case, it was owned and operated by Huntercombe (No.12) Ltd, part of the Huntercombe Group.

The claimant—known only as ABC for legal reasons—was placed there for about four months in 2018–2019. She alleges that during that placement she was:

mentally and verbally abused by staff
restrained on more than 200 occasions

Every single one of those events happened before the hospital changed hands.

In around March 2021, the hospital undertaking was transferred under the TUPE 2006 Regulations to Active Young People Limited (AYPL). Two clinicians involved in her care—her consultant psychiatrist and responsible clinician—moved across with the transfer and continued working under AYPL.

By 2023, the hospital had closed. The BBC describes it bluntly as a “failing hospital for young people” that shut after years of problems.

Why she couldn’t just sue Huntercombe

ABC initially sued Huntercombe alone. That’s the obvious defendant: it owned and ran the hospital at the time of the alleged abuse.

But Huntercombe went into liquidation. The Court of Appeal explains the practical problem: Huntercombe’s insurance arrangements included a £250,000 per‑claim excess. If claims succeeded, that excess would have to be met by the insolvent company itself. The judges accepted that this could “wipe out most or all” of ABC’s damages.

So ABC did what any rational claimant would do: she looked for someone else who might be legally responsible.

She turned to AYPL, the company that took over the hospital in 2021.

The legal question: does vicarious liability travel with the staff?

The case turns on a narrow but high‑stakes question under Regulation 4(2)(a) of TUPE 2006:

When a business is transferred under TUPE, does the old employer’s vicarious liability to an injured third party (here, a patient) transfer to the new employer?

Regulation 4(2)(a) says that, on a relevant transfer, “all the transferor’s rights, powers, duties and liabilities under or in connection with” any employment contract move to the transferee.

It was already established in Bernadone v Pall Mall Services Group [2001] ICR 197 that tort liabilities owed to employees can transfer under TUPE, because they arise “in connection with” the employment contract.

ABC’s argument was to push that logic one step further. If an employer’s tort liability to an employee can transfer, why not its vicarious liability to a third party, where that liability arises from acts closely connected with the employee’s work?

Her case was simple in concept:

Huntercombe’s staff allegedly abused and restrained her before 2021.
Huntercombe is now insolvent and may not be able to meet the insurance excess.
AYPL took over the hospital and the staff under TUPE.
Therefore, AYPL should have inherited Huntercombe’s vicarious liability for those pre‑transfer acts.

His Honour Judge Bird, sitting in the High Court, rejected that argument at a preliminary trial in 2025. ABC appealed.

The Court of Appeal: TUPE doesn’t carry third‑party vicarious liability

The appeal was heard by Bean LJ, Coulson LJ (who gave the leading judgment), and Sir Launcelot Henderson on 22 July 2026, with judgment handed down on 8 September 2026.

The Court of Appeal dismissed the appeal. Their reasoning can be boiled down into a few key points.

1. TUPE is about employees’ rights, not third‑party claimants

The court started from the Acquired Rights Directive, the EU instrument from which TUPE is derived. Its purpose is to safeguard employees’ rights when their employer changes—not to create new rights for customers, patients, or other third parties.

So when Regulation 4(2)(a) talks about liabilities “under or in connection with” employment contracts, that phrase has to be read in that context: it’s about liabilities that matter to employees.

2. Vicarious liability doesn’t give employees any rights

Counsel for ABC accepted that an employee has no relevant right against the employer in respect of its vicarious liability to a third party. The court agreed.

Vicarious liability is described as “secondary” and “parasitic” on the employee’s own liability to the third party. It’s a legal construct that helps injured third parties sue employers, but it doesn’t protect employees. In fact, under cases like Lister v Romford Ice and Lifestyle Equities CV v Ahmed, an employer can seek a full indemnity from the negligent employee for damages paid out.

So, from the employee’s perspective, the employer’s vicarious liability is not a benefit; it’s potentially a risk.

3. “In connection with” is wide, but not limitless

The court accepted that “in connection with” is language of very wide import. But it’s also a “protean” phrase whose meaning depends on the surrounding words and the legislative purpose.

Here, the purpose is to protect employees’ rights. Because vicarious liability to third parties does not give employees any rights under their contracts, it does not arise “in connection with” those contracts for TUPE purposes.

4. TUPE’s disclosure regime is about employee claims, not third‑party claims

Regulations 11 and 12 of TUPE require the transferor to give the transferee information about employees and their rights, including existing claims. That allows the transferee to understand what liabilities it is taking on.

There is nothing in TUPE that requires disclosure of third‑party tort claims. The Court of Appeal treated that silence as deliberate. If Parliament had intended transferees to inherit vicarious liability to third parties, it would have required disclosure of those claims too.

5. You don’t make a new owner liable for historic events without clear words

The court emphasised that allowing a third party to sue a transferee with no involvement in the events would be “at odds with ordinary legal principle” unless there were clear statutory wording to permit it. There isn’t.

So the court concluded:

Regulation 4(2)(a) does not transfer the transferor’s vicarious liability to third parties for pre‑transfer acts.

That applies both to common‑law tort claims and to the human‑rights allegations ABC had also raised.

The wider context: a failing hospital and dozens of claims

The BBC report adds the human context the judgment only hints at.

Around 50 similar claims by former Huntercombe patients are waiting to be managed by the court.
In February 2022, a 14‑year‑old girl, Ruth Szymankiewicz, was unlawfully killed at the hospital after being left unaccompanied by a staff member on his first shift. An inquest jury reached that conclusion in August 2025.

The Court of Appeal was clearly aware that this wasn’t an isolated complaint. Huntercombe was a troubled institution, and AYPL inherited a hospital with serious issues it “could not have known” about at the time of transfer.

What the judges said about the claimant herself

One of the most striking passages in the judgment is the court’s treatment of ABC personally. They went out of their way to say she was not being criticised for bringing the claim.

They accepted that she:

“has suffered loss and damage”
may not be able to recover damages
and that this is “through no fault of her own”

That’s as close as appellate judges get to saying: we think you may have been badly treated, but the law doesn’t give you a route to compensation from this defendant.

The result

The Court of Appeal upheld HHJ Bird’s decision. The key holding is stark:

TUPE Regulation 4(2)(a) does not transfer an employer’s vicarious liability to third parties for pre‑transfer acts.
That liability remains with the transferor—here, Huntercombe.

For ABC, that means AYPL is not liable for what allegedly happened to her in 2018–2019. Her only route is against Huntercombe, a company in liquidation with an insurance structure that may make meaningful recovery impossible.

For the law, it means a clear line has now been drawn: when a business changes hands under TUPE, employees’ rights travel; third‑party vicarious liability does not.

For the dozens of other former patients, it’s a warning. The courts may accept that they were harmed. They may even say so in judgment. But unless Parliament changes the rules, the legal system may still leave them with nothing.

By Pat Harrington

The judgment can be found here:

https://www.bailii.org/ew/cases/EWCA/Civ/2026/1161.html

Disclaimer

This article is intended as a general explanation of the Court of Appeal’s decision in ABC v Huntercombe (No.12) Ltd & Ors [2026] EWCA Civ 1161. It is not legal advice and should not be relied upon as such. The summary is based on publicly available information, including the judgment and reporting from reputable news sources, and is provided for information and comment only. Individual cases turn on their own facts, and anyone affected by issues raised here should seek advice from a qualified legal professional. Solidarity Trade Union accepts no liability for any loss arising from reliance on this material.

Whistleblowing at Work: What This Month’s Cases Tell Us About Power, Protection and the Limits of the Law

From post‑employment retaliation to managers hiding behind “innocent” decision‑makers, this month’s whistleblowing judgments reveal a legal landscape still struggling to keep pace with the realities workers face. These cases show how employers manoeuvre, how tribunals interpret the law, and why collective strength remains the surest protection for anyone who speaks up.

Introduction

Whistleblowing law in Britain has always been a patchwork: some protections strong in theory, others riddled with loopholes, and all of it dependent on tribunals willing to look beneath the surface of an employer’s story. The latest run of cases shows just how contested this terrain remains. Workers continue to face retaliation long after their employment ends; managers can escape liability by hiding behind “innocent” decision‑makers; and the courts themselves are split on how far whistleblowing detriment law should stretch.

Below is a worker‑centred breakdown of the key cases — what happened, what the courts decided, and what it means for anyone who raises concerns in the workplace.

Case Summaries

1. Post‑employment retaliation still counts: Day v Lewisham & Greenwich NHS Trust

This case confirms something workers have long known: retaliation doesn’t stop just because your employment does. Dr Day argued that statements the Trust made after settling an earlier whistleblowing case amounted to detriment. The tribunal initially said post‑employment acts weren’t covered — but the Employment Appeal Tribunal disagreed.

The EAT held that post‑employment detriments can fall within s.47B ERA when they’re closely tied to the employment relationship. As the document puts it, the statements were made “in the context of earlier tribunal proceedings about disclosures made during Dr Day’s employment” .

However, the Trust ultimately escaped liability because the tribunal found the statements weren’t materially influenced by his disclosures, but by “media scrutiny” and a desire to defend itself.

Worker takeaway:
Protection doesn’t end when the job does — but employers will still argue their motives were “something else.”

2. Persisting after an investigation can undermine protection: Argence‑Lafon v Ark Syndicate Management

Here, the worker raised concerns about a potentially fraudulent claim. After a full investigation found no fraud, he continued to accuse the company of wrongdoing. The tribunal held that his later statements were no longer protected because it was no longer “reasonable” for him to hold that belief.

He was dismissed for refusing a PIP and for continuing to allege fraud. The EAT agreed the dismissal wasn’t automatically unfair for whistleblowing — it was his behaviour, not the disclosures, that drove the decision.

But the tribunal had failed to consider whether the dismissal was unfair on ordinary grounds, especially the role of the appeal process. That part was sent back.

Worker takeaway:
Employers often weaponise “reasonableness” to shut down continued concerns. And once a PIP enters the picture, the narrative shifts fast.

3. The limits of Jhuti: decision‑makers vs manipulators in Henderson v GCRM

This case tackles a recurring problem: what happens when the person who fires you doesn’t know about your protected disclosures, but the manager feeding them information does?

The tribunal originally found the decision‑maker (R3) liable for detriment by dismissal, imputing the whistleblowing‑related motive of R2 (the line manager). The EAT said this was wrong. The Jhuti principle — looking behind the decision‑maker’s stated reason — applies to automatic unfair dismissal, not to detriment claims.

Applying Jhuti here would create “potentially unlimited liability on an innocent party” .

The s103A dismissal claim was sent back for reconsideration, but the detriment findings were overturned.

Worker takeaway:
Managers who manipulate processes may escape detriment liability unless the dismissal claim itself succeeds. The law still struggles to capture behind‑the‑scenes retaliation.

4. Dismissal can be a detriment: Rice v Wicked Vision & Barton Turns v Treadwell

These joined appeals deal with a long‑running legal contradiction: can a worker bring a detriment claim based on the dismissal itself?

The Court of Appeal said yes — not because it agreed with the earlier Osipov decision, but because it was bound by it. As the summary puts it, “It is plainly unsatisfactory that the construction of this legislation has now produced conflicting decisions at three levels of court” .

Both workers were allowed to proceed with detriment claims based on dismissal by co‑workers, with employers potentially liable via vicarious liability.

Worker takeaway:
The law is messy, contradictory and ripe for reform — but for now, workers can pursue detriment claims even where the detriment is dismissal.

5. Secondment isn’t employment: Bank of Africa v Hassani

This case is a reminder that employers will use technicalities to avoid responsibility. The worker was employed by BCME but seconded to the Bank of Africa. The tribunal wrongly found her employment had transferred, making the Bank liable for dismissal and detriment.

The EAT overturned this. The secondment agreement was clear: she remained employed by BCME. That meant:

The Bank couldn’t be liable for unfair dismissal.
Detriment claims needed proper analysis under s.43K ERA (extended definition of worker), which the tribunal hadn’t done.
The tribunal also wrongly treated all respondents as jointly responsible — a “composite approach” the law doesn’t allow.

Worker takeaway:
Seconded workers fall into a legal grey zone. Employers exploit that ambiguity, and tribunals often get it wrong.

Conclusion

Across these cases, a pattern emerges: whistleblowing law remains a battleground where employers test the limits, tribunals disagree, and workers are left navigating a system that often feels designed to trip them up. Whether it’s post‑employment retaliation, managerial manipulation, or technical arguments about employment status, the message is clear — legal protection is only ever part of the story.

Solidarity, collective action and union support remain the real safeguards for workers who speak up. The law may shift, but our responsibility to defend each other does not.

By Pat Harrington

Court Says Old Employer Still to Blame for Staff Mistakes Made Before Job Transfer

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