The Equality Act and TUPE

Anna George looks at the implications of the case highlighted in the last issue of Network on Gunn v South Central Ambulance NHS Foundation Trust (NHS Direct). This was described by the President of the Employment Appeal Tribunal (EAT) as providing important new guidance on the rights of employees under TUPE and the Equality Act 2010. DAC Beachcroft LLP represented the Trust in this case which raised the interesting question of whether an employee whose employment is due to transfer under TUPE is entitled to object to the transfer and bring a discrimination claim against the transferee (the receiving employer).

The EAT’s decision

The EAT agreed that under TUPE, a transferring employee will not be a job applicant. They cannot apply for employment that they ‘already enjoy’ and which would transfer automatically to the receiving employer on the same terms.

Perhaps mindful that this decision may leave some employees without protection, the EAT commented that where an individual was aware that a receiving employer proposed to vary terms of employment post transfer, it was open to them to object (as Mrs Gunn did), resign and sue the transferor (the sending employer) for constructive dismissal or for making substantial changes to working conditions to their material detriment.

However, the decision didn't end there. The EAT looked at the offer made by NHS Direct to relocate Mrs Gunn (on increased hours) and the 111 service to a new location post-transfer. The closure of Mrs Gunn's original base of work was found to be a redundancy situation; she was offered a new working pattern at a new base and this was found to be an offer of suitable alternative employment. So, the EAT found that a job offer had been made to Mrs Gunn by NHS Direct; she therefore qualified as a job applicant under the Equality Act and was entitled to protection.

Practical implications for employers

1. Employees who are transferring under TUPE are not job applicants for the purposes of the Equality Act. This means they cannot bring a discrimination claim against the receiving employer

2. This decision extends beyond situations where receiving employers are making offers of suitable alternative employment in relation to post-transfer redundancy situations. Where receiving employers propose to vary terms and conditions post-transfer, there is a risk that this may be seen as making an offer of alternative employment, enabling employees who object to transferring to qualify for protection under the Equality Act as job applicants.

3. Receiving employers should take care to handle any proposed post-transfer redundancy situations and/or changes to terms and conditions in the same manner as they would for existing employees by taking into account the protected characteristics, and any requirement for reasonable adjustments, of their prospective employees.

Anna George, Solicitor, DACBeachcroft, Bristol office