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NHS Direct NHS Trust v Gunn UKEAT/0128/14;  IRLR 799; (2015) EMPLR 057
14 May 2015
Employment Appeal Tribunal (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.
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.’
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.