TUPE – a little relief for all those struggling with in or out sourcing!

Normally when a contract transfers under the TUPE regs (Reg 3) it is trite law that the contract maintains its integrity such that any post transfer contract changes are broadly impermissible.

The situation becomes more complicated where an employee who is transferring brings with them an active claim against the transferor (the company they are leaving).  This has to be dealt with by the transferee (receiving company) – who steps into the shoes of the transferor and should have been given notice of this claim before the transfer took place.

The recent case of AC v Huntercombe (No12) Ltd & Ors sheds light on a more nuanced situation.  Here an ex psychiatric patient tried to enforce liability on the transferee of a claim he was pursuing against a third party involving the vicarious liability of the transferor.  The CA held, in this case, liability for the actions of a third party, imposed vicariously on the transferor, does not transfer to the transferee on a relevant transfer.  This is because the TUPE regulations are derived from European legislation (still relevant) and do not concern themselves with rights other than those that exist directly between the transferring employee and the transferor.