Employment tribunal and court judgments | May 2025

Vicarious liability for a tort committed towards a third party prior to a transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) does not pass to the transferee.

The claimant, anonymised as ABC, alleged she suffered harm due to the actions of two employees while she was an inpatient at a hospital operated by Huntercombe (No.12) Ltd. Subsequently, Huntercombe sold the hospital to Active Young People Ltd, with its employees, including the two employees in question, transferring to the new employer under TUPE. ABC initiated proceedings in the High Court seeking damages for injuries she suffered whilst she was an inpatient, against both Huntercombe and Active Young People Ltd, asserting that vicarious liability for the employees’ actions had transferred to the new employer.

The central question was whether vicarious liability for tortious acts committed before the transfer date transfers to the new employer under regulation 4 of TUPE.

The High Court held that the automatic transfer principle under regulation 4 of TUPE did not extend to vicarious liability for tortious acts and so they do not transfer under TUPE. The court reasoned that such liability is not sufficiently connected to the transferring employees’ contracts of employment to fall within the scope of TUPE’s automatic transfer provisions. For liability to transfer, the connection with the transferring employment contract must be direct. Consequently, Huntercombe remained liable for the alleged torts committed by its employees prior to the transfer.

In this case, the court held that since vicarious liability involves liability to a third party (rather than directly between the parties to the transferring employment contract) it is too remote to transfer under TUPE.

The Tribunal had jurisdiction to hear claims brought by a news reporter who worked in Asia and the UK for US news outlet.

Ms. Saima Bhatti, a British journalist of Pakistani heritage, was employed by CNN from 2013 to 2017, primarily working in Asia under contracts governed by the laws of Georgia. Following a foot injury sustained while reporting in Jerusalem in 2014, she relocated to London in March 2017 for medical treatment and continued to work intermittently from CNN’s London bureau. In August 2017, her contract was not renewed, leading her to file claims for discrimination, unfair dismissal, and other employment-related grievances. The issue arose whether the UK Employment Tribunal had jurisdiction over claims involving a US-based employer, taking into account Ms Bhatti’s US governed contract and international work.

The Employment Tribunal originally held that only events from 1 March 2017 onwards had jurisdiction to be heard in the UK, due to Ms Bhatti’s relocation to London and her increasing connection with the UK. CNN appealed, arguing the claims did not fall within the jurisdiction of the UK tribunals.

The EAT considered the following key issues:

Territorial Jurisdiction: the EAT upheld the Employment Tribunal’s decision that, from March 2017 onwards, Ms. Bhatti’s employment had a sufficient connection to the UK. Despite her traveling work history, her base shifted to London from March 2017 during her medical recovery, and she undertook assignments from the London bureau, establishing a substantial connection to the UK.

International Jurisdiction: The EAT found that the UK tribunal had jurisdiction under domestic law and, if necessary, under the Brussels Regulation (which was applicable at the time). The London bureau was considered a branch from which the dispute arose, satisfying jurisdictional requirements.

Service of Proceedings: The EAT determined that service via CNN’s London bureau was effective and brought the claim to CNN’s attention, rejecting their arguments of improper service.

This case highlights that UK Employment Tribunals can assert jurisdiction over claims involving international employment arrangements when there is a substantial connection to the UK. Employers with international operations should be aware that employees can bring claims in the UK  should they have significant ties or can establish a sufficient connection in relation to the work undertaken in the UK. Additionally, the service of a claim to a UK office/branch of an international employer may be sufficient service, depending on whether the employer is properly made aware of the claim.

Mr. Augustine, a private hire driver averaging 34.8 hours per week, was required to pay a weekly “circuit fee” of £148 to access Data Cars Ltd’s booking system. This fee was identical for all drivers, regardless of their working hours. Mr. Augustine contended that this flat fee disproportionately impacted part-time workers, effectively reducing their hourly earnings compared to full-time counterparts.

The ET dismissed Mr. Augustine’s claim, reasoning that both part-time and full-time drivers were subject to the same fee, indicating equal treatment. Additionally, the ET concluded that any adverse effect was not solely due to Mr. Augustine’s part-time status – the reason for charging the circuit fee was because it was standard practice in the industry, and not because Mr Augustine worked fewer hours.

Mr Augustine appealed to the Employment Appeals Tribunal.

The EAT found the ET had erred in law by requiring the part-time status to be the sole reason for the treatment. The EAT held that the correct test was whether it was an effective and predominant cause, even if not the only cause. However, the EAT decided to follow the narrower interpretation in McMenemy v Capita Business Services Ltd 2007 – following which a narrow test of causation applies to discrimination claims against part-time workers, so that employees are only protected under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTWR) if less favourable treatment is solely on the ground of part-time status.

The EAT considered that the right not to be subjected to less favourable treatment under the PTWR reg.5(1) applied where the part-time worker status was an effective cause of the less favourable treatment, even if not the sole cause. However, it held that it should follow the Inner House of the Court of Session’s decision in McMenemy and dismissed the appeal on that basis.

Mr Augustine appealed to the Court of Appeal. The key issue to be determined was whether McMenemy was correctly decided in requiring the part-time status to be the sole ground for the less favourable treatment.

The Court of Appeal unanimously dismissed Mr Augustine’s appeal, upholding the EAT’s decision. However, the appeal decision provided differing rationales:

• Lady Justice Elisabeth Laing affirmed the “sole cause” test from McMenemy; and
• Lord Justices Edis and Bean, while expressing reservations about the “sole cause” requirement, agreed to apply it to maintain consistency across UK jurisdictions, leaving the matter for the Supreme Court to resolve.

The Court of Appeal granted permission for Mr Augustine to appeal to the Supreme Court.

This case highlights the importance of evaluating employment practices through the lens of proportionality, especially concerning part-time workers. Employers should be cautious that uniform policies do not inadvertently disadvantage part-time staff. However, for a claim under the PTWR to succeed, the less favourable treatment must be solely attributable to the individual’s part-time status.