In NHS Trust Direct NHS Trust v. Gunn UK EAT/0128/14, the Employment Appeals Tribunal (EAT) said that a transferring employee was not a job applicant for discrimination purposes and President, Mr Justice Langstaff provided some useful guidance.

Ms Gunn is disabled and objected to a proposed service provision-based transfer to NHS Trust Direct from another provider because of a threatened increase in hours. Having objected - and, somewhat unusually, being retained in employment by the transferor - she sought to bring a discrimination claim against the notional transferee, NHS Trust Direct, on grounds of its failure to make reasonable adjustments to the terms on which it offered employment to her.

To pursue such a claim she would have to be deemed an “applicant” for employment under the Equality Act 2010. While this concept found favour with the Employment Tribunal it was dismissed by the EAT as inconsistent with the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) which provide for the automatic transfer of employment to the transferor. It confirms that the automatic transfer principle under Regulation 4(1) of TUPE does not involve an offer of employment.

Although Ms Gunn was, in fact, allowed to continue her claim because the EAT determined that the offer of employment she actually received was one amounting to an offer of suitable alternative in a redundancy context and she was thus an "applicant", the EAT concluded that she was not protected against discrimination as an applicant in respect of her existing contract of employment.

Employees are now less likely to object to transfer but more likely to bring a claim of discrimination post transfer arising from any proposed changes.