But time limit for bringing a claim did not start from transfer date
The case of Vernon v Azure shows that employers may be exposed to claims transferred under Tupe for longer than they may expect.
Facts
Vernon was employed by Port Vale (Valiant 2001) Football Club as a conference and events sales manager. On 1 July 2011 her employment was transferred under Tupe to Azure Support Services, where she was employed until her dismissal on 19 October 2011.
Both before and after the transfer, Vernon was subjected to acts of sexual harassment by an employee of the football club. This employee did not transfer to Azure under Tupe.
In September 2011, rumours circulated that Vernon was involved in a personal relationship with one of the Port Vale footballers. Relationships with the club’s footballers were forbidden under an express term of her contract. The club’s chief executive asked for Vernon to be suspended and then for her removal as the rumours persisted. An investigation was undertaken. Vernon was suspended, but then reinstated due to a lack of evidence - but it later became apparent that she had not been totally transparent about the extent of the relationship. In the light of this, her line manager took the view that the duty of mutual trust and confidence had been broken and the whole episode had jeopardised Azure's contract with the football club. Vernon was dismissed. Her internal appeal against dismissal was rejected and she brought a number of tribunal claims, including one for sexual harassment.
Tribunal
With regard to the sexual harassment claim, the employment tribunal found that, while both the football club and Azure were liable, the club could not be liable for any acts of sexual harassment that occurred after the date of the transfer because, from that date, the offender and Vernon were employed by different employers. On the issue of time limits, the tribunal found the harassment was a ‘continuing act’ up to 1 October 2011(the month that Vernon was dismissed). The claim was submitted on 29 December 2011 and was, therefore, in time. Vernon appealed the fact that the football club's liability for the harassment did not transfer to Azure under Tupe (which was important as far as any award to Vernon was concerned as the football club was by then insolvent)
EAT
The Employment Appeal Tribunal allowed Vernon's appeal and the parties to the dispute agreed that liability for the harassment transferred to Azure. However, Azure argued that the limitation period on its liability began from the date of the Tupe transfer and that the claim was, therefore, out of time.
The EAT held that, under the Equality Act 2010, the time limit to bring a claim for sexual harassment starts from the date of the conduct complained of and, in the case of conduct extending over a period of time, from the end of that period. The time limit does not start from the date of the transfer when the relevant employment ended. Therefore the continuing nature of the unlawful conduct was not stopped by the transfer. So Vernon’s claim was in time.
Comment
While the result in this case seems fair (in a non-legal sense) it is surprising as the act of harassment was considered to be continuing even though the harasser was not an employee of Vernon's employer after the transfer. By analogy it would, therefore, seem that if a harasser leaves his or her job but continues to harass someone, the time limit for that person to bring a claim will be extended for the former employee's continued harassment.
All employment liabilities and claims transfer under Tupe and employers would generally expect the time limit for such claims to start from the date of the transfer. The concern arising here for employers is that an individual with whom the employer does not have an employment relationship, and therefore has no control over, can extend the liability period after a Tupe transfer. This point is of particular relevance where transferring employees remain in close proximity to their former colleagues who do not transfer.
Paul Mander is a partner and head of employment and Stuart Smyth is a trainee at Penningtons Manches
For more employment law articles, visit HR-inform
