TUPE transferring employee was job applicant after all – but for unexpected reasons

Is an employee transferring under TUPE an “applicant” for the purposes of discrimination legislation? Unlikely says the Employment Appeal Tribunal (EAT) in NHS Direct NHS Trust v Gunn UKEAT/0128/14, although they may be if, during consultation, they are made an offer of suitable alternative employment.

Ms Gunn was an employee of Shropshire Doctors.  As a reasonable adjustment because of her disability, her working hours were reduced to 8.5 a week.  The service in which she worked was to be taken over by NHS Direct.  In discussions before the TUPE transfer Ms Gunn was told she would not be able to work 8.5 hours a week once employed by NHS Direct, because all its employees worked at least 15 hours a week.  Ms Gunn’s request to work 10 hours a week was rejected.  She therefore objected to the transfer and brought a claim of disability discrimination against NHS Direct claiming that it had failed to make a reasonable adjustment.

The issue for the tribunal was whether Ms Gunn was eligible to bring this claim i.e. was she an employee or ‘applicant’ of NHS Direct.

Ms Gunn was not eligible to bring a claim as an employee because she had objected to transferring. However, in the Employment Appeal Tribunal hearing the Judge discovered that during the pre-transfer consultation NHS Direct had made Ms Gunn an “offer of suitable alternative employment” to work at a new site. This point had apparently not been made save in passing, by Ms Gunn’s representative.

This meant Ms Gunn was an ‘applicant’ for employment and so she was eligible to claim against NHS Direct after all.

This decision is useful for employers purchasing businesses or outsourced contracts in that it suggests they are not expected to assess transferring employees’ reasonable adjustment requests pre-transfer. Buyers should also think carefully before making any offer of suitable alternative employment, as this may result in a transferring employee becoming an “applicant” and expose the employer to the risk of claims.

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Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.

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