A transferee may face claims for pre-transfer harassment lodged more than three months after the transfer where the perpetrator continues to harass post-transfer, even where the perpetrator does not transfer to the transferee (but continues to have a working relationship with the victim, for example where part of the business is outsourced but remains on site).
In this case the claimant was subjected to a continuing course of harassment by a colleague, both before and after the part of the transferor's business in which the claimant (but not the perpetrator) worked was outsourced to the transferee. Liability for the pre-transfer harassment transferred to the transferee under TUPE, but the transferee sought to argue that the claim was out of time as it was made more than three months after the transfer. The EAT rejected this, holding that as the harassment was a continuing act, time ran only from the end of that act even where this was post-transfer. In the alternative, it was just and equitable to extend time. (Vernon v Azure Support Services)
Transferees will want to ensure that any indemnities cover such claims whenever they are brought.
Key contacts
Steve Bell
Managing Partner - Employment, Industrial Relations and Safety (Australia, Asia), Melbourne
Emma Rohsler
Regional Head of Practice (EMEA) - Employment Pensions and Incentives, Paris
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