Employee Who Objected to TUPE Transfer Not Protected Against Discrimination by Transferee

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Posted on 08 Jun 2015

An employee who objected to the transfer of her employment under TUPE could not bring a discrimination claim against the transferee. 

In NHS Direct v Gunn, Ms Gunn is disabled for the purposes of the Equality Act 2010. She worked for Shropshire Doctors in the “111 service” provided on behalf of the NHS. Her contractual hours had been reduced to 8.5 hours per week due to her disability, which was subject to review. 

In late 2012, the NHS proposed to transfer the 111 service to NHS Direct from March 2013. This was a “service provision change” to which the Transfer of Undertakings (Protection of Employment) Regulations 2006 applied. This meant that Ms Gunn’s employment would automatically transfer to NHS Direct, unless she objected. NHS Direct notified Ms Gunn that it required all of its staff to work at least 15 hours a week. It rejected her offer to increase her hours to 10 hours per week. She considered that she would not be able manage 15 hours and so she objected to her employment transferring. She took a different role with Shropshire Doctors on reduced pay and hours. 

Ms Gunn claimed disability discrimination against the transferee, NHS Direct. She alleged that it had breached its duty to make reasonable adjustments to accommodate her disability. It should have offered her reduced hours. NHS Direct argued that Ms Gunn could not bring a claim against them. She was not their employee as she had objected to her employment transferring. Although the law prohibits employers from making discriminatory job offers to job applicants, it had not made her a job offer. She could not therefore bring a claim as a job applicant either. 

The Employment Appeal Tribunal agreed with NHS Direct. Ms Gunn could not be a job applicant for a job she already enjoyed. In addition, as the effect of TUPE is that her contract transfers automatically under TUPE, there was no room for any “offer” of employment by NHS Direct. She could not therefore bring a discrimination claim against NHS Direct on this basis. 

Employees who object to their employment transferring cannot bring discrimination claims against the transferee. This is because they never become employees of the transferee and, as this case finds, the transferee does not make them an offer of employment either. The same is true for other claims, such as unfair dismissal. 

However, the position is different if an employee does not object to their employment transferring. If Ms Gunn had not objected, her employment would have transferred automatically and she could then have brought a discrimination claim against NHS Direct after the transfer.

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