ABC v Huntercombe – Important Court of Appeal TUPE Judgment

The Court of Appeal has delivered an important judgment clarifying the scope of TUPE in ABC v Huntercombe (No.12) Ltd & Ors [2026] EWCA Civ 1161. Although the appeal concerned a relatively narrow point – whether an employer’s historic vicarious liability to a third party transfers to a new employer under TUPE – the decision has wider implications for the interpretation of liabilities transferred under TUPE.

R James Hutcheon Solicitors acted for ABC, the appellant, instructing Niazi Fetto KC, Peter Edwards and John Platts-Mills in this important appeal.

The claimant alleged abuse and excessive restraint whilst a patient at Huntercombe Hospital. Following a subsequent TUPE transfer, some employees involved in her care transferred to Active Young People Ltd (AYPL).

The central issue was whether Huntercombe’s vicarious liability for the pre-transfer acts of those employees also transferred to AYPL under regulation 4(2)(a) of the Transfer of Undertakings (Protection of Employment) Regulations 2006.

The claimant argued that such liability arose “in connection with” the employees’ contracts of employment and therefore transferred under TUPE.

The Court of Appeal unanimously dismissed the appeal. It held that TUPE is principally concerned with safeguarding employees’ rights when an undertaking transfers. An employer’s vicarious liability to an injured third party is not an employment right belonging to the employee.

The Court therefore clarified that a transferor’s vicarious liability to third parties for acts or omissions of employees occurring before the TUPE transfer does not transfer to the new employer under regulation 4(2)(a).

The decision also rejected the reasoning in the earlier case of Doane v Wimbledon FC, which had supported the proposition that such vicarious liability could transfer.

Importantly, the judgment does not determine whether the alleged abuse, restraint or negligence occurred, nor whether Huntercombe or other defendants are liable. It determines the separate preliminary question of whether historic vicarious liability passes to the transferee by operation of TUPE.

The judgment provides important clarification of the boundary between employment-related liabilities that transfer under TUPE and liabilities owed to third parties, with implications extending beyond the particular facts of the Huntercombe litigation.

Full judgment: ABC v Huntercombe (No.12) Ltd & Ors [2026] EWCA Civ 1161 – BAILII