In the case of NHS Direct NHS Trust (now known as South Central Ambulance Service NHS Foundation Trust) v Gunn UKEAT/0128/14/BA the EAT considered the relationship between discrimination under the Equality Act 2010 and the Transfer of Undertakings (Protection of Employment) Regulations 2006, in particular, the question of whether a disabled employee, who objects to a transfer based on a transferee’s indications that it will not honour reasonable adjustments, can bring a discrimination claim against the transferee. 

Background

Under section 39(1) of the Equality Act 2010 an employer must not discriminate against a person:-

  1. In the arrangements it makes for deciding to whom to offer employment.
  2. As to the terms on which it offers a person employment.
  3. By not offering a person employment.

These provisions cover offers of employment and job applicants.

Section 39(2) of the Equality Act 2010 provides protection against discrimination to employees.

Facts

The Claimant is and was employed by Shropshire Doctors Cooperative Ltd (“Shropshire Doctors”). The Claimant suffers from rheumatoid arthritis and is disabled within the meaning of the Equality Act 2010. In light of her disability, Shropshire Doctors reduced her contractual hours to 8.5 hours per week.

Shropshire Doctors provided a 111 Service on behalf of the NHS. It was proposed that in March 2013 the 111 Service would be provided by NHS Direct NHS Trust (“NHS Direct”). The change of provider constituted a service provision change for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”). The Claimant was assigned to the 111 Service and her employment was therefore due to transfer to NHS Direct in March 2013.

In November 2012 the Claimant was told by letter from NHS Direct that it required all of its staff to work a minimum of 15 hours per week. In response she offered to work 10 hours per week but that offer was rejected by NHS Direct. As a result the Claimant objected to the transfer of her employment from Shropshire Doctors to NHS Direct. The Claimant remained employed by Shropshire Doctors who found her an alternative post on reduced terms as to pay and hours.

The Claimant complained to an Employment Tribunal that NHS Direct had failed to meet its duty under the Equality Act 2010 to make reasonable adjustments.

NHS Direct applied to have the Claimant’s claim struck out on the basis that the Claimant was not an employee of NHS Direct nor did she fall within section 39(1) of the Equality Act 2010 and she was therefore not entitled to bring a claim against NHS Direct under the Equality Act 2010.

Employment tribunal decision

The Employment Judge dismissed the application to strike out the Claimant’s claim. The Employment Judge’s view was that there was no material difference between a request for certain terms of employment and an application for certain terms of employment.

The Employment Judge concluded that:

  1. When NHS Direct offered the Claimant a contract for 15 hours per week by way of rejection of the Claimant’s wish to continue to work 8.5 hours per week (or the 10 hours per week she had offered) that constituted an offer of employment within section 39(1) of the Equality Act 2010.
  2. A request was equivalent to an application such that when the Claimant made a request that she be excused a minimum working week of 15 hours, she was applying for employment within the meaning of section 39(1) of the Equality Act 2010.
  3. TUPE was irrelevant.

NHS Direct appealed against the decision. It argued that:-

  1. The Claimant was never its employee as her contract of employment had not transferred to it and if the Claimant’s employment had transferred to NHS Direct under TUPE the Claimant could have brought a claim for failure to make a reasonable adjustment.
  2. A transfer of a contract of employment pursuant to TUPE could not amount to an offer of employment and therefore section 39(1) of the Equality Act 2010 did not apply to the Claimant.

The Secretary of State for Education intervened given the practical implications for transferees of the Employment Tribunal’s decision. It argued that an interpretation of section 39(1) of the Equality Act 2010 in line with that of the Employment Tribunal would, in practical terms, oblige transferees to enter into negotiations with those potentially being transferred as to their terms of employment, in advance of a transfer. This could be a huge task in respect of large transfers, might affect the viability of transfers and would remove the certainty of employees transferring on existing terms and conditions.

EAT decision

The President of the EAT’s view was that the Claimant could not be regarded as an applicant for employment she already enjoyed, that her contract, exactly as it was, would automatically be transferred to NHS Direct and that she had every right against NHS Direct which she would have enjoyed against Shropshire Doctors.

However, on reviewing the bundle of documents, the EAT became aware of a new point that had not been argued before the Employment Tribunal. The parties were invited to make further submissions because a letter in the bundle of documents referred to a proposal by NHS Direct to relocate the 111 Service from Shrewsbury to Dudley after the transfer. This gave rise to the following line of reasoning:

  1. The 111 Service would no longer be worked from the site at which the Claimant had been working.
  2. Since the needs of the business for work to be done in the place it had been done would cease or diminish, there was potentially a redundancy situation.
  3. Unless there was suitable alternative employment, the Claimant’s contract (transferred under TUPE) would end.
  4. Suitable alternative employment could be offered rather than effecting a dismissal by reason of redundancy.
  5. This alternative employment would be offered on the basis that the Claimant worked a minimum of 15 hours per week.

The EAT held therefore that this was not a case in which the Claimant was being offered employment which she had already secured (by reason of TUPE). Instead it was a case in which the Claimant was being offered employment under a fresh contract and NHS Direct’s offer of suitable alternative employment at its Dudley site on the basis of a minimum of 15 hours a week could be construed as an offer of employment to which section 39(1) of the Equality Act 2010 would apply.

Accordingly, the appeal was dismissed and the Claimant was allowed to proceed with her disability discrimination claim against NHS Direct.

Comment

On the specific facts of this case, when NHS Direct wrote to the Claimant informing her that the location of her job would be changing following the transfer and offering her suitable alternative employment, there was a potential redundancy situation and the offer of a new job which meant section 39(1) of the Equality Act 2010 applied and the Claimant was able to proceed with her disability discrimination claim against NHS Direct.

However, the President of the EAT provided significant guidance on the inter-relationship between the duty to make reasonable adjustments on the one hand and TUPE on the other hand. His view was that the automatic transfer principle under TUPE protects an employee’s contract of employment in its entirety and an employee cannot be considered an applicant in relation to their existing terms of employment.