In an unusual case, the EAT had to decide whether an employee who had objected to a TUPE transfer could nonetheless bring a discrimination claim against the transferee, even though she had never become its employee. On the facts of the case the EAT found that she could, even though this would not always, or even usually, be the case.  

The claimant was disabled for the purposes of the Equality Act. Reasonable adjustments had been made to her working conditions and she worked for 8.5 hours per week on an NHS 111 telephone service. That service was going to be transferred to a new provider; the transfer amounted to a service provision change for the purposes of TUPE.  

Before the transfer the incoming provider told the claimant that she would be required to work 15 hours per week once the transfer had taken place. She took the view that this was a failure to make reasonable adjustments and a discriminatory act and objected to the transfer. She remained in the employment of the transferor, which found her an alternative albeit less well paid post.  

The question for the EAT was whether the claimant could bring a disability discrimination claim against the transferee when her objection meant she had never become its employee. To proceed with her claim she had to show that she should be treated as an applicant for employment under the Equality Act.  

The EAT took the view that someone whose employment was to be transferred under TUPE would not normally be regarded as an "applicant" for employment because they were not being made "an offer of employment". A transferring employee already has a job on terms that bind the transferee following the transfer. They are not being "offered" such employment and on normal principles cannot sensibly be regarded as a job "applicant".  

However, on the facts of this case the claimant could in fact show that she was an applicant for the purposes of the Equality Act. The transferee had written to her to tell her that there was a redundancy situation because the 111 service would not be provided from the current workplace and to offer her suitable alternative employment on a 15 hour a week contract. This offer constituted an offer of employment within the meaning of the Equality Act, meaning that the claimant was an "applicant" and could proceed with her disability discrimination claim.