Posted by Gemma Ospedale, Partner
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Interrelationship between TUPE and the Equality Act
In NHS Direct NHS Trust v Gunn the EAT has considered the interrelationship between disability discrimination and TUPE.
The Claimant worked for the Shropshire Doctors Cooperative Limited which provided emergency call services to the NHS. She was disabled and as a reasonable adjustment was permitted to work 8.5 hours per week. When the service was transferring to NHS Direct under TUPE, she was told that all of their staff are required to work a minimum of 15 hours a week and that this would be applied to her. She objected to the transfer and as a result remained with the transferor in a post which was less suitable for her.
She lodged a disability discrimination claim against the transferees on the basis that they had failed to make a reasonable adjustment.
The Employment Tribunal took the view that NHS Direct had made her an offer of employment to work 15 hours a week and she was entitled to bring a claim against them as an applicant for employment (for this purpose the Tribunal considered TUPE irrelevant). When this was appealed to the EAT by NHS Direct the Secretary of State intervened arguing that, if the Tribunal’s reasoning was upheld, it would cause considerable problems by imposing a potential obligation on transferees to enter in negotiations with transferring employees prior to the transfer.
The Secretary of State asserted that the transferee was only obliged to consider reasonable adjustments once the transfer had taken place.
The appeal was dismissed because the EAT found there was a redundancy situation (the service was no longer going to be operated out of the site where she worked) and that the transferees were actually making an offer of alternative employment to the Claimant, which fell within s.34(1) of the Equality Act governing discrimination on the terms on which a job is offered to an applicant. However before getting to that point the Judge observed that she could not be regarded as an applicant for employment in which she was already engaged. He then went on to comment that she was just as likely to be at risk of having her hours changed by the transferor as the transferee. However under regulation 4(2)(a) all duties and liabilities of the transferor automatically transfer – so by definition the term of a contract regarding reduced working hours would also transfer as a reasonable adjustment to be continued by the transferee.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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