TUPE

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NHS Direct NHS Trust v Gunn EAT – 14 May 2015

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This case raises an interesting point on the relationship between discrimination under the Equality Act 2010 (‘EA’) and TUPE.   Put shortly what happens if the transferee, before the transfer, indicates that it will not honour reasonable adjustments made by the transferor in respect of an employee who it is intended would ordinarily transfer?  Can the employee who objects to the transfer bring a discrimination claim on the basis of being job applicant?

The Facts

The employee had rheumatoid arthritis and was disabled within the meaning of the EA.   She worked 8.5 hours per week for the transferor, Shropshire Doctors.   The service to which she was assigned and operated by Shropshire Doctors was due to transfer to NHS direct in March 2013.   NHS direct required its staff to work at least 15 hours per week.   The employee offered to work 10 hours. This was rejected.   In light of this refusal and NHS Direct’s decision not honour the adjustments that had been made she objected to the transfer under Reg 4(7) and remained employed by Shropshire Doctors in an alternative and less well remunerated post.

The employee then brought a claim against NHS Direct for failure to make reasonable adjustments. NHS Direct applied to strike out the claim on the grounds that she did not fall within any of the classes of individuals entitled to bring a claim under the EA. The employee relied on s. 39(1) of the EA which provides that it is unlawful to discriminate against job applicants in the arrangements the employer makes for deciding whom to offer employment; as to the terms on which to offer employment and; by not offering employment.

ET Judgment

The ET dismissed the application to strike out and held that the offer to employ the employee if she worked 15 hours per week was an offer of employment.

EAT judgment

NHS Direct appealed to the EAT on the grounds that:  (i) As the employee had objected to the transfer her employment never transferred.   (On a plain reading of Reg 4(7) that is correct).   (ii)  That a transfer under TUPE could not amount to an offer of employment.   (iii)  That the transferee was obliged to accept the contract as it was and therefore there could be no possibility of an offer on different terms. In short it was essentially saying that the employee had made a mistake by objecting as she had put herself in worse position than she would have been had her employment simply transferred when NHS direct, as the transferee, would then have been obliged to honour her contract.

The EAT was initially in agreement with NHS Direct however, having retired to consider judgment, it came across a letter from the transferee which was to the effect that the employee’s post was to be made redundant and that the offer of the post with NHS Direct was suitable alternative employment.  The EAT considered that this amounted to an offer of employment.  After hearing further argument it held that the letter did indeed amount to an offer of alternative employment and therefore the employee could bring a claim under s. 39(1) of the EA.

Link to EAT judgment

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