A recent Employment Appeal Tribunal ruling suggests that an employee who has objected to a TUPE transfer will generally not have a remedy against the transferee under the Equality Act 2010. Simon Lambert reports.
In NHS Direct NHS Trust (now known as South Central) v Gunn (Transfer of Undertakings : Objection to transfer)  UKEAT 0128_14_1405 (14 May 2015) a disabled employee, Ms Gunn, who worked 8.5 hours per week for her employer was part of a service which was to be taken over by NHS Direct NHS Trust.
In advance of the transfer, NHS Direct let it be known that its employees worked a minimum of 15 hours weekly. Ms Gunn requested that this be adjusted for her case, to 10 hours per week on the basis that it was a reasonable adjustment for her disability.
When this was rejected, she objected to her employment transferring, and she remained in the service of her current employers, on reduced terms as to hours and pay.
She claimed to an employment tribunal that NHS Direct had discriminated against her as their indication that they would not continue her reduced hours was a failure to make reasonable adjustments.
A preliminary issue was heard – namely whether Ms Gunn was protected against discrimination by NHS Direct. She argued that she fell within the protected category of person listed in the Equality Act 2010 as a job applicant.
The tribunal at first instance decided that Mrs Gunn, as someone about to transfer under TUPE, was akin to a job applicant and therefore protected by the Equality Act and entitled to bring a claim of discrimination against NHS Direct.
On appeal to the EAT NHS Direct argued that the automatic transfer principle in TUPE did not involve an "offer of employment" as a transferee was obliged to honour the existing terms of an employee's contract. It further argued that Ms Gunn was never its employee as she did not transfer to NHS Direct so there was not duty on them to make reasonable adjustments.
The Secretary of State intervened in the appeal due to the potential practical implications for transferees if they had to enter into negotiations about reasonable adjustments before a transfer.
In his decision the President of the EAT noted that the underlying premise of TUPE is that an employee's contract of employment continues with the transferee exactly as it has with the transferor. Therefore, a transferring employee cannot be regarded as an applicant for a job on terms which they already enjoy and a transferee cannot be considered to have made an offer of employment.
The EAT went onto allow the appeal on the basis that prior to the transfer, NHS Direct had discussed a change of job location with Mrs Gunn and therefore had offered her another position.
The President noted that his determination that an employee transferring under TUPE does not fall within the "job applicant" protected category of person under the Equality Act as "important guidance".
What this means for employers
This case holds that an employee who has objected to a transfer will generally not have a remedy against the transferee under the Equality Act 2010.
However, transferees who proposed to alter terms and conditions post-transfer, for example by changing the site at which individuals work, may be found to have made an offer of suitable alternative employment. If that is the case, they will be protected by the Equality Act as someone to whom an offer of employment has been made.
Transferees may also find that they have other claims bought against them. Where an employee objects to the transfer and resigns in response to a stated intention by the transferee to make significant unilateral changes to their contract of employment, they may be able to bring a claim against the transferor under regulation 4(11) of TUPE (constructive dismissal) or regulation 4(9) of TUPE (substantial changes to working conditions to the employee's material detriment).
Alternatively, an employee in similar circumstances to Ms Gunn might choose not to object to the transfer and bring a discrimination claim against the transferee after the transfer.