The Employment Appeal Tribunal (EAT) has decided that an employee who is due to transfer under TUPE (Transfer of Undertakings (Protection of Employment) Regulations 2006), but objects to that transfer, cannot bring a discrimination claim against their potential employer, the transferee.

In such circumstances the employee is neither an employee nor an applicant of the transferee so they lack the standing to bring a claim under the Equality Act 2010. However, where the employee is facing redundancy, they may pursue a discrimination claim in relation to an offer of suitable alternative employment.

Background

Ms Gunn was employed by Shropshire Doctors who ran an NHS 111 service. She was disabled as she suffered from rheumatoid arthritis. Under her terms of employment with Shropshire Doctors she worked 8½ hours a week.

Responsibility for the 111 service was due to transfer to NHS Direct in March 2013. In November 2012 Ms Gunn learnt that NHS Direct intended her to work 15 hours a week following the transfer. She felt unable to work these hours and offered to work 10 hours a week instead. However, NHS Direct rejected her proposal. Ms Gunn objected to the transfer and was instead found alternative employment with Shropshire Doctors, albeit on less favourable terms.

The claim

Ms Gunn claimed that NHS Direct’s failure to allow her to work 8½ hours a week amounted to discrimination on grounds of disability and failure to make reasonable adjustments. NHS Direct applied to strike out the claim but the Employment Tribunal dismissed the application. It found that Ms Gunn fell within the description of “applicant” in the equality legislation.

NHS Direct appealed this finding.

EAT’s decision

The EAT agreed that the Tribunal had made the correct decision in rejecting the strike out application, but the EAT disagreed with the reasoning behind the Tribunal’s decision. The EAT considered that Ms Gunn could not be regarded as an applicant for a job which would automatically transfer to NHS Direct.

“The essential points which seemed to me well-founded were that the Claimant could not be regarded as an applicant for employment she already enjoyed. Her contract, exactly as it was, would automatically be transferred to NHS Direct. There was no room for any ‘offer’ from NHS Direct to honour it.” Employment Appeal Tribunal

Instead, the EAT raised a new point of argument. It transpired that at the time of the transfer Ms Gunn had been facing redundancy because NHS Direct had planned to close the Shrewsbury site at which she worked. NHS Direct had offered her alternative employment at 15 hours a week, which she had refused.

The EAT decided that in such circumstances Ms Gunn had not been offered continued employment under her existing terms of employment, but a fresh contract of employment. This offer of alternative employment made her an “applicant” for the purposes of the Equality Act.

The appeal was accordingly dismissed.

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