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Employment Law

Legal guidance - compliance - software

01 JUN 2015

Will an employee who objects to a TUPE transfer be protected from discrimination by the prospective transferee?

Will an employee who objects to a TUPE transfer be protected from discrimination by the prospective transferee?
Colin Godfrey
Associate, Veale Wasbrough Vizards

The answer, following the decision of the Employment Appeal Tribunal (EAT) in NHS Direct NHS Trust v Gunn, appears to be no, except in certain limited situations.

Under the Equality Act 2010 (EqA 2010) protection from limited discrimination is afforded to, amongst others, employees and applicants. The question in this case was how that protection interacts with the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).

When TUPE applies, the employment of all employees engaged immediately before the transfer in the business or service which is transferring will transfer to the transferee. The employees who transfer will do so on the same terms and conditions of employment as they had before the transfer and their continuity of employment will be preserved. Employees in this situation do, however, have a right to object to the transfer of their employment in this way. Any employee electing to do so will not transfer to the transferee and their employment will end by operation of law.

In this case, Ms Gunn was employed by Shropshire Doctors in its '111 service'. In late 2012 it was proposed that the service would transfer to NHS Direct under TUPE. At the time, due to her disability, Ms Gunn only worked 8.5 hours a week. NHS Direct notified Ms Gunn that all employees would be required to work a minimum of 15 hours a week. Ms Gunn felt she would be unable to cope with those hours so offered to work 10 hours a week instead. When this was rejected by NHS Direct Ms Gunn objected to the transfer of her employment to NHS Direct.

Ms Gunn sought to bring an Employment Tribunal (ET) claim against NHS Direct for a breach of their duty (under the EqA 2010) to make reasonable adjustments for her by insisting that she would be required to work 15 hours per week. NHS Direct applied to strike the claim out, stating that Ms Gunn was neither an employee of NHS Direct nor an applicant so was not afforded protection under the EqA 2010.

The ET was satisfied that Ms Gunn was an applicant. NHS Direct had offered her a position to work fifteen hours a week and Ms Gunn had responded to that offer by requesting to work 10 hours instead.

On appeal, the EAT disagreed with this reasoning. It found that the underlying premise of TUPE was that an employee's employment continues on the same terms and conditions as before the transfer. As such, Ms Gunn could not be an applicant for a job she already had.

The appeal was still dismissed on a new point - that there was concurrently a redundancy situation (NHS Direct stating that they would be moving the service to a new location) and that the proposed position working 15 hours per week was in fact an offer of suitable alternative employment and to that extent Ms Gunn could be considered to be an 'applicant' under the EqA 2010.

Best practice

The EAT's conclusions in this case are interesting as they indicate that it will be rare that an employee who objects to the transfer of their employment transferring under TUPE transfer will be protected under the EqA 2010 from discriminatory acts/omissions of the prospective transferee.

The EAT's position emphasises the finality of an employee's decision to object to their employment transferring under TUPE. Save for the redundancy situation which existed in this case, Ms Gunn would not have had a cause of action against NHS Direct under the EqA 2010. It is however important to note that had Ms Gunn allowed her employment to transfer under TUPE, her new employer would immediately have been under a duty to make reasonable adjustments for her. 
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