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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50161
Experience:  Qualified Employment Solicitor
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I am the Claimant in an Disability Discrimination case in an

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I am the Claimant in an Disability Discrimination case in an Employment Tribunal. I have been through 2 Preliminary Hearings including wherein the Respondent attempted to have my case struck out, etc, but it has survived on almost all heads of claim (four) with the Employment Judge ruling it having a more than reasonable chance of success at a full merits hearing and this has now been scheduled for April 2017.
We were offered Judicial Mediation which I accepted but the Respondent declined on the basis of my schedule of loss being unrealistic and the fact that I have TUPE'd to another employer since my claim began (they were aware this would happen as it was stated in my ET1)... they are saying that they are seeking advice that my new employer should be made to be the Respondent or added as a Respondent - this sounds absurd to me but I am acting as litigant in person, only hiring a Barrister for hearings. Please could you help me understand what they are trying to by asking for my new employer to be made a Respondent in this case? My new employer are not in any way involved in the breaches of the law that caused me to bring my case to an Employment Tribunal and the fact that I have TUPE'd in the middle of the claim to me has no relevance. Please can you advise? Happy to provide more detail as needed.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

So just to clarify, the respondent has not provided any reason whatsoever for wanting to add your new employer?

Customer: replied 1 year ago.
hi ben and thanks for your helpthe response to myself and the tribunal today was as follows:Dear Sirs,''....., the Respondent are no longer the employer of the Claimant, as she has transferred to another employer under TUPE, following the loss of the contract by the Respondent.....Given the TUPE transfer, and the operation of regulation 4(2) to transfer all of the Respondent's liabilities to the Claimant's new employer, we are currently taking instructions on whether the transferee should be added to the proceedings as a Respondent..'

OK, thank you for your response. I will review the relevant information and laws and will get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Also, please do not responded to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you.

Many thanks for your patience. Under TUPE all accrued liabilities transfer from the old employer to the new one. This includes all accrued liabilities of the transferor, such as acts and omissions which can give rise to claims, claims for constructive dismissal, sex and race discrimination, equal pay, accrued debts owed to the employee and other tortious liability (for example, personal injury), will pass to the transferee under TUPE.

So there is a realistic possibility that the new employer would become liable for the acts of the previous employer purely because you had transferred to them under TUPE. Tis is even if they had absolutely no involvement in the issues that gave rise to the current claim. These matters should have been discussed at the pre-transfer stage between the two employers, where the outgoing one discloses all its current and ongoing liabilities and in return the new employer could have obtained indemnities as part of the transfer to ensure that the old employer remains liable for any compensation that may result out of this. However, this is something for them to do and you will not be part of any such negotiations or indemnities, so it really depends on what they knew at time of transfer and if they took out any indemnities against it.

I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you

Customer: replied 1 year ago.
Hi Ben
thanks for this clarity. i have no idea what they discussed at the pre-transfer stage regarding this but i guess the full responsibility was on my ex employer to disclose such matters and not on me to do so? i did not mention anything to my new employer as did not think it my place to do so. i am worried this will tarnish my prospects with my new employer.

Oh yes you have no liability in this respect - this could have been all down to the ex employer to resolve. In effect what could happen is that if they had failed to disclose there was an ongoing claim with you and the new employer ended up with liability because of it, they could pursue the old employer for negligence or failing to make a proper disclosure. Also there would have been no obligation on you to report this to them, not unless you had been specifically asked, which does not appear to be the case. The employer cannot treat you detrimentally for having a claim in against the old employer as that would amount to victimisation

If your original question has been answered I would be grateful if you could please quickly rate my answer by selecting 3, 4 or 5 starts at the top of the page - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you

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