Miss L Harkat Shuayb and Miss S Birdi v Haringey GP Group Ltd T/a Charlton House Medical Centre and others: 3311706/2021 and 3313094/2021
EMPLOYMENT TRIBUNALS
Case No 3311706/2021, 3313094/2021
Between
Miss Leena Harkat Shuayb (“C1”) Miss Sophie Birdi (“C2”)ClaimantHaringey GP Group Limited trading as Charlton House Medical Centre (“R1”) Mr Mohammed Al-Mahfuz (“R2”) Dr Hafizur Rahman (“R3”) Mr Rob Monjo (“R4”)Respondent
Before
Employment Judge TobinMr M Salter (instructed by counsel) for claimantDate 10 November 2025
JUDGMENT
ON RECONSIDERATION Pursuant to rules 70 to 73 Employment Tribunal Rules of Procedure 2013 FOLLOWING RECONSIDERATION, the Employment Tribunal determines as follows: If it is the case that there has been a TUPE transfer from ‘Charlton House Medical Centre’ to the first respondent on or around 29 September 2021, then liability for the claims brought by the claimants against the second respondent and/or the third respondent and/or the fourth respondent DOES NOT automatically pass to the first respondent under the provisions of TUPE. Case Number: 3311706/2021 & 3313094/2021 V 2
REASONS
[1]This has been a reconsideration hearing following the decision of Sean Pong Tyres Limited v Moore [2024] EAT 1 where the Employment Appeals Tribunal (“EAT”) considered the effect of the Transfer of Undertakings (Protection of Employment) Regulations 2006, as amended, (“TUPE”) on an employer's liability for discrimination or harassment where the perpetrator's employment has transferred under TUPE.[2]In so far as it related to the issues of this case, a brief summary of the case is as follows. Mr Moore (“C”) brought claims for unfair constructive dismissal and harassment. Both claims were brought against Sean Pong Tyres (R) but were based factually on harassment by an individual (X), although (unlike here) 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 TUPE the employment of X had transferred to a new company (Y) and that, by virtue of regulation 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 the claims under Employment Rights Act 1996 and Equality Act 2010 claims. R appealed against the refusal of the amendment application.[3]The EAT considered the authorities on the transfer of tortious liability such as Bernadone v Pall Mall Services Groups Ltd and ors [2001] ICR 197, which dealt with the transfer of liability for personal injury in respect of a claimant employee. There were no authorities dealing with the transfer of liability when the transferring employee was a perpetrator rather than a victim. For a range of reasons, the EAT concluded that liability did not transfer and that liability under the Equality Act was not analogous to liability for dismissal, which is expressly covered by the regime in the TUPE Regulations. It held that the transferor employer had 'primary liability' under the Equality Act which did not, in these circumstances, transfer to the alleged perpetrator's new employer. For the purposes of regulation 4(2)(a) of TUPE, the rights and obligations under the Equality Act 2010 arose 'in connection with' the employment contract of the claimant (who had not transferred), rather than the contract of the alleged perpetrator. On that basis, the Employment Tribunal had not erred in refusing to allow the employer's application to amend its response and to add the transferee as a party to the claim.[4]This Judgment must be read in conjunction with my substantive decision, following the hearing of 11 September 2023.[5]I set out the agreed position of the parties at paragraphs 7, 8 and 9 of my previous judgment. R2 and R4 were the alleged discriminators, harassers and/or victimisers. They were at all material times employees of R3. R2 and R4 did not participate in my previous hearing. R3 was the original employer, who transferred the Charlton House Medical Centre to R1. C1 and C2 did not transfer to R1 pursuant to TUPE. Case Number: 3311706/2021 & 3313094/2021 V 3[6]The Sean Pong Tyres decision was handed down after my previous determination, it has direct applicability, and the legal landscape had changed since my earlier determination.[7]In my judgment, I relied heavily on the reasoning in Doane v Wimbledon Football Club Ltd & Ors, Sheffield County Court 02/12/2007 (Case No. 6SE0506). At paragraph 32(a) Judge Stout in Sean Pong Tyres downplayed the relevance of Doane as she distinguishes that case as being only concerned with vicarious liability, not primary liability. The liability in his case arises from allegations of direct discrimination or harassment and/or victimisation, the “mindset” liability as described, and that was regarded as a materially different source of employer’s primary liability.[8]At paragraph 32(b), Judge Stout said that it would be “stretching the meaning of reg 4(2)(a) of TUPE to say that the employer’s primary liability to a claimant employee under ss39 and 40 of [EqA] is a ‘liability under or in connection with’ the alleged tortfeasor’s contract so as to transfer under TUPE”. Under the EqA both the employer and the tortfeasor employee are completely dependent upon the employer’s contractual relationship with the claimant employee as without this contractual relationship a claim under the EqA cannot get off the ground. Primary liability can arise independently of an employment relationship between the employer and the individual tortfeasor, e.g. an agent.[9]The Judge noted at paragraph 32(c) that “connected with” could have a wide or narrower meaning which depended upon context. She noted the different and wider interpretation for Benadone v Pall Mall Services Group Limited [1999] IRLR 617 (which I relied upon) concerned the benefit under an insurance indemnity, but in that instance the employee had transferred as opposed to our case where the employee had not transferred. The same point applies to Martin v Lancashire County Council and another 2001 ICR 197 referred to by Mr Butler in his submissions. Neither Martin nor Benadone were concerned with third-party liability so, attractive as their analysis initially appeared to me, I cannot place such weight on these authorities following Sean Pong Tyres.[10]The primary liability to the claimant employee arises in connection with the transferor’s contract with the claimant employee, here as Mr McFarlane identified between R3 and C1 and C2 (see paragraph 32(d)). However, according to Sunderland City Council v Brennan 2012 ICR 1183, which was approved by Judge Stout, there was no liability or obligation arising between a transferor and the individual tortfeasor.[11]Judge Stout addresses whether we should apply a more purposeful construction into this area, and she gave clear guidance. Rights and liabilities “genuinely and properly” connected with the tortfeasors’ contract should transfer. “However, it is no part of the purpose of TUPE for the complex rights and obligations in connection with a non-transferring employee to transfer to the transferee”. So, she clearly came down on the side of a narrow interpretation of regulations 4(2)(a) and 4(2)(b).[12]The appeal Tribunal has considered this issue directly. Sean Pony Tyres contained an extensive analysis of the law and is the first appeal authority dealing with this issue, so it ought to be followed. If my analysis of that case is not the ratio of the Case Number: 3311706/2021 & 3313094/2021 V 4 case, the obiter bits are highly persuasive and directly relevant, so it ought to be followed. In response to the submissions of Mr Salter and Mr Butler, I regard myself as being bound by the judgement in Sean Pong Tyres.[13]I originally preferred a broad interpretation of obligations arising from the contracts of employment or the employment relationship. This was set out in paragraph 30 of my original decision. As I said at the hearing, my decision was finely balanced. Sohail v WFS Ground Handling Services Limited & ors ET Case No. 2400126/2017 held that the Acquired Rights Directive assisted and both this and the TUPE was never intended to operate in respect of the right of individuals other than employees directly affected by the relevant transfer. Sohail is consistent with Sean Pong Tyres. Doane gave a wider interpretation, which has been supplanted by Sean Pong Tyres. A narrow interpretation of what constitutes liability under or in connection with so as to transfer under TUPE now prevails. Accordingly, I reverse my determination to that as set out in the headline above.[14]It follows from my reconsideration decision that R1 ought to be removed from proceedings as there is no basis in law for the claimants to pursue their cases against the first respondent. This decision does not affect the claims pursued against R2, R3 and R4. __________________________ Employment Judge Tobin 4 July 2024 Sent to the parties on: 12 July 2024 ……………………………. For the Tribunal: ………………….………….. Case Number: 3311706/2021 & 3313094/2021 V 1 EMPLOYMENT TRIBUNALS Claimants: Miss Leena Harkat Shuayb (“C1”) Miss Sophie Birdi (“C2”) Respondent: Haringey GP Group Limited trading as Charlton House Medical Centre (“R1”) Mr Mohammed Al-Mahfuz (“R2”) Dr Hafizur Rahman (“R3”) Mr Rob Monjo (“R4”) Heard at: Watford Hearing Centre (by cloud video platform) On: 25 April 2024 Before: Employment Judge Tobin (sitting alone) Appearances For the claimants: Mr M Lansman (counsel) For the respondents: R1 - Mr E McFarlane (consultant) R3 - Mr S Butler (counsel) R2 and R4 – No attendance or submissions[1]This has been a reconsideration hearing following the decision of Sean Pong Tyres Limited v Moore [2024] EAT 1 where the Employment Appeals Tribunal (“EAT”) considered the effect of the Transfer of Undertakings (Protection of Employment) Regulations 2006, as amended, (“TUPE”) on an employer's liability for discrimination or harassment where the perpetrator's employment has transferred under TUPE.[2]In so far as it related to the issues of this case, a brief summary of the case is as follows. Mr Moore (“C”) brought claims for unfair constructive dismissal and harassment. Both claims were brought against Sean Pong Tyres (R) but were based factually on harassment by an individual (X), although (unlike here) 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 TUPE the employment of X had transferred to a new company (Y) and that, by virtue of regulation 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 the claims under Employment Rights Act 1996 and Equality Act 2010 claims. R appealed against the refusal of the amendment application.[3]The EAT considered the authorities on the transfer of tortious liability such as Bernadone v Pall Mall Services Groups Ltd and ors [2001] ICR 197, which dealt with the transfer of liability for personal injury in respect of a claimant employee. There were no authorities dealing with the transfer of liability when the transferring employee was a perpetrator rather than a victim. For a range of reasons, the EAT concluded that liability did not transfer and that liability under the Equality Act was not analogous to liability for dismissal, which is expressly covered by the regime in the TUPE Regulations. It held that the transferor employer had 'primary liability' under the Equality Act which did not, in these circumstances, transfer to the alleged perpetrator's new employer. For the purposes of regulation 4(2)(a) of TUPE, the rights and obligations under the Equality Act 2010 arose 'in connection with' the employment contract of the claimant (who had not transferred), rather than the contract of the alleged perpetrator. On that basis, the Employment Tribunal had not erred in refusing Case Number: 3311706/2021 & 3313094/2021 V 3 to allow the employer's application to amend its response and to add the transferee as a party to the claim.[4]This Judgment must be read in conjunction with my substantive decision, following the hearing of 11 September 2023.[5]I set out the agreed position of the parties at paragraphs 7, 8 and 9 of my previous judgment. R2 and R4 were the alleged discriminators, harassers and/or victimisers. They were at all material times employees of R3. R2 and R4 did not participate in my previous hearing. R3 was the original employer, who transferred the Charlton House Medical Centre to R1. C1 and C2 did not transfer to R1 pursuant to TUPE.[6]The Sean Pong Tyres decision was handed down after my previous determination, it has direct applicability, and the legal landscape had changed since my earlier determination.[7]In my judgment, I relied heavily on the reasoning in Doane v Wimbledon Football Club Ltd & Ors, Sheffield County Court 02/12/2007 (Case No. 6SE0506). At paragraph 32(a) Judge Stout in Sean Pong Tyres downplayed the relevance of Doane as she distinguishes that case as being only concerned with vicarious liability, not primary liability. The liability in his case arises from allegations of direct discrimination or harassment and/or victimisation, the “mindset” liability as described, and that was regarded as a materially different source of employer’s primary liability.[8]At paragraph 32(b), Judge Stout said that it would be “stretching the meaning of reg 4(2)(a) of TUPE to say that the employer’s primary liability to a claimant employee under ss39 and 40 of [EqA] is a ‘liability under or in connection with’ the alleged tortfeasor’s contract so as to transfer under TUPE”. Under the EqA both the employer and the tortfeasor employee are completely dependent upon the employer’s contractual relationship with the claimant employee as without this contractual relationship a claim under the EqA cannot get off the ground. Primary liability can arise independently of an employment relationship between the employer and the individual tortfeasor, e.g. an agent.[9]The Judge noted at paragraph 32(c) that “connected with” could have a wide or narrower meaning which depended upon context. She noted the different and wider interpretation for Benadone v Pall Mall Services Group Limited [1999] IRLR 617 (which I relied upon) concerned the benefit under an insurance indemnity, but in that instance the employee had transferred as opposed to our case where the employee had not transferred. The same point applies to Martin v Lancashire County Council and another 2001 ICR 197 referred to by Mr Butler in his submissions. Neither Martin nor Benadone were concerned with third-party liability so, attractive as their analysis initially appeared to me, I cannot place such weight on these authorities following Sean Pong Tyres.[10]The primary liability to the claimant employee arises in connection with the transferor’s contract with the claimant employee, here as Mr McFarlane identified between R3 and C1 and C2 (see paragraph 32(d)). However, according to Sunderland Case Number: 3311706/2021 & 3313094/2021 V 4 City Council v Brennan 2012 ICR 1183, which was approved by Judge Stout, there was no liability or obligation arising between a transferor and the individual tortfeasor.[11]Judge Stout addresses whether we should apply a more purposeful construction into this area, and she gave clear guidance. Rights and liabilities “genuinely and properly” connected with the tortfeasors’ contract should transfer. “However, it is no part of the purpose of TUPE for the complex rights and obligations in connection with a non-transferring employee to transfer to the transferee”. So, she clearly came down on the side of a narrow interpretation of regulations 4(2)(a) and 4(2)(b).[12]The appeal Tribunal has considered this issue directly. Sean Pony Tyres contained an extensive analysis of the law and is the first appeal authority dealing with this issue, so it ought to be followed. If my analysis of that case is not the ratio of the case, the obiter bits are highly persuasive and directly relevant, so it ought to be followed. In response to the submissions of Mr Salter and Mr Butler, I regard myself as being bound by the judgement in Sean Pong Tyres.[13]I originally preferred a broad interpretation of obligations arising from the contracts of employment or the employment relationship. This was set out in paragraph 30 of my original decision. As I said at the hearing, my decision was finely balanced. Sohail v WFS Ground Handling Services Limited & ors ET Case No. 2400126/2017 held that the Acquired Rights Directive assisted and both this and the TUPE was never intended to operate in respect of the right of individuals other than employees directly affected by the relevant transfer. Sohail is consistent with Sean Pong Tyres. Doane gave a wider interpretation, which has been supplanted by Sean Pong Tyres. A narrow interpretation of what constitutes liability under or in connection with so as to transfer under TUPE now prevails. Accordingly, I reverse my determination to that as set out in the headline above.[14]It follows from my reconsideration decision that R1 ought to be removed from proceedings as there is no basis in law for the claimants to pursue their cases against the first respondent. This decision does not affect the claims pursued against R2, R3 and R4.