NHS Direct NHS Trust v Gunn UKEAT/0128/14;  IRLR 799; (2015) EMPLR 057
Employment Appeal Tribunal (EAT)
The EAT asserts that a person entitled to transfer to a new employer under TUPE is not an ‘applicant’ for employment with the transferee and so cannot rely on s 39(1) Equality Act 2010.
The issue arose when G, who worked only 8 hours per week because of her disability, was transferred under TUPE from a doctor’s co-operative to NHS Direct. NHS Direct was not prepared to employ her on less than 15 hours per week. She objected and remained employed in less congenial work with the co-operative. The tribunal held she had been discriminated against under s 39(1) Equality Act 2010. The relevant part of that section reads: ‘An employer (A) must not discriminate against a person (B) … as to the terms on which A offers B employment.’
NHS Direct appealed. The point became irrelevant when the EAT concluded that in fact G’s position was redundant anyway because NHS Direct would not be operating from the co-operative’s premises. The EAT nevertheless commented that the tribunal was wrong to hold that, had it not been for the redundancy, NHS Direct had discriminated against her under s 39(1). She could not be regarded as an ‘applicant’ for the job, the EAT said, because she was entitled to continued employment anyway with NHS Direct under TUPE.
Comment: Section 39(1) does not use the term ‘applicant’, although it appears in the heading of s 39 (‘Employees and applicants’). So there is nothing in s 39(1) to exclude existing employees from protection from discrimination in terms of employment offered in a situation where, for whatever reason, an existing employee is offered different terms of employment. We have included this case because it has been reported elsewhere, but in the writer's view it should not be relied on.
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