Where a disabled employee of the transferor will be redundant on transfer due to relocation, the transferee should indicate a willingness to make reasonable adjustments to any suitable alternative role offered pre transfer. If the transferee states that it will not do so, this could give the employee a discrimination claim against the transferee even if the employee objects to the transfer and so is never employed by the transferee. The pre-transfer offer of a new role is an ‘offer of employment’ by the transferee to which the duty to make reasonable adjustments applies.
In contrast, where the transferee indicates that it will not honour reasonable adjustments to a role that will continue after the transfer, the employee who objects to the transfer and resigns pre-transfer will not have a discrimination claim against the transferee. An existing role simply continues post transfer by virtue of TUPE so there is no ‘offer of employment’. However, the employee may have an unfair dismissal claim against the transferor, for which the transferee might be liable under the terms of the sale agreement. Alternatively, the employee could choose to transfer then bring a discrimination claim against the transferee. (NHS Direct NHS Trust v Gunn)