NHS Direct NHS Trust (now known as South Central Ambulance Service NHS Foundation Trust) v Gunn

An employee affected by a proposed TUPE transfer may be an applicant for employment within Equality Act 2010, section 39(1), where the transferee offers suitable alternative employment in anticipation of a potential redundancy. Such an offer may be a genuine offer of fresh employment, even though the employee’s existing contract would otherwise transfer automatically.

The Appeal Tribunal may exceptionally permit a new point on appeal where all material is before it, the issue is a discrete point of law requiring no further factual findings, and refusing it would cause injustice. An automatic TUPE transfer, without more, is not an offer of employment; that view was guidance only and was not determinative of the appeal.

The claimant, who was disabled and worked 8.5 hours a week for Shropshire Doctors Cooperative Ltd, was assigned to a 111 service due to transfer to NHS Direct under Transfer of Undertakings (Protection of Employment) Regulations 2006. NHS Direct stated that substantive staff had to work at least 15 hours weekly and rejected her proposal to work 10 hours. She objected to the transfer and remained employed by the transferor in a less advantageous alternative post.

She brought a disability-discrimination claim. Employment Judge Woffenden dismissed NHS Direct’s application to strike it out, holding that the claimant was an applicant and that NHS Direct had offered her employment within section 39(1) of the Equality Act 2010. NHS Direct appealed.

After the initial appeal hearing, the EAT identified an email which described a potential redundancy and an offer of suitable alternative employment at a different site. The central issues were whether the EAT should admit that new point and whether the offer brought the claimant within section 39(1).

1. Appeal dismissed. The Employment Judge’s conclusion that the claim should not be struck out was correct, although her reasoning was unsatisfactory.

2. The EAT exceptionally allowed the claimant to rely on the new point. The relevant email was before the Employment Tribunal, no further factual findings were needed, and the issue was a discrete point of law capable of disposing of the strike-out appeal. The claimant had been unrepresented below, no oral evidence had been heard, and refusal would have been unjust.

3. On its proper reading, the email contemplated the cessation of work at the claimant’s existing base, a potential redundancy, and an offer of suitable alternative employment at Dudley. The offer was not merely an assertion that her existing TUPE-transferred contract would continue on altered hours. It was an offer of employment in a prospective redundancy situation, capable of falling within section 39(1) of the Equality Act 2010.

4. The claimant therefore came within the statutory class as an applicant. The claim could proceed to a determination of whether the offer, including its 15-hour minimum requirement, was discriminatory.

5. The Judge added, as non-determinative guidance, that an employee whose contract transfers automatically under TUPE is not ordinarily being offered employment merely because the transferee must take over that contract. Under regulation 4(1), the contract continues with the transferee. A proposed transferee’s fresh offer of suitable alternative employment in a redundancy context is materially different.

6. For redundancy purposes, the inquiry under section 139 of the Employment Rights Act 1996 is factual. The existence of a mobility clause did not determine whether there was a potential redundancy arising from the intended cessation of work at a location.

• Employment Appeal Tribunal: dismissed NHS Direct’s appeal and upheld the refusal to strike out the claimant’s discrimination claim: [2015] UKEAT 0128_14_1405.
• Employment Tribunal: Employment Judge Woffenden dismissed NHS Direct’s strike-out application in reasons sent on 2 December 2013.