KP McConnell v WM Morrisons Supermarkets Ltd

Assignment for a TUPE transfer is a fact-sensitive question of whether an employee was assigned to the transferring organisational framework on a non-temporary basis. Time spent in the relevant unit may be relevant, but no percentage formula governs. The reason or lawfulness of an employee’s placement may inform whether an assignment was temporary; unlawful treatment does not itself determine assignment.

For indirect discrimination, group disadvantage and the claimant’s own disadvantage require separate analysis. Employer knowledge is not an element of the Equality Act 2010 indirect discrimination test, although knowledge of discriminatory effect may be relevant to justification. A reasonable-adjustments claim requires identification of the relevant practice, disadvantage and any appropriate comparator before proposed adjustments can be assessed. Victimisation turns on detriment because of a protected act, judged by the reason why; affirmation does not dispose of that statutory claim.

KP McConnell was a disabled employee of WM Morrisons Supermarkets Ltd at its Stockton-on-Tees distribution centre. After working permanently in the Returns & Recycling Unit from 2020, he was identified as assigned to that unit when its operation transferred to an external contractor under the Transfer of Undertakings (Protection of Employment) Regulations 2006. He objected to the transfer and his employment ended.

The Newcastle Employment Tribunal dismissed his claims, including indirect discrimination, failure to make reasonable adjustments and victimisation. He appealed the assignment finding and the dismissal of those Equality Act claims. The central issues were whether the Tribunal applied the correct assignment approach, whether it properly analysed the disadvantage caused by the relevant working practice, and whether its errors affected the victimisation decision.

1. Assignment under TUPE. The appeal on assignment was dismissed. Regulations 2 and 4 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 require the employee to be assigned to the transferring organised grouping on a non-temporary basis. There is no rigid formula. The percentage of time spent in the relevant unit may be relevant, but is not the test. The Tribunal considered the Claimant’s permanent work in the RRU, the genuinely split and temporary assignments of the comparators, and his contract, which permitted work across the site. Its conclusion was open to it.

   The reason for an employee’s placement may shed light on the nature of the assignment. But unlawful victimisation leading to an unwilling assignment does not alter the separate factual question whether the employee was assigned to the transferring organisational framework. It may instead be relevant to remedy. Nor did the possibility that a further adjustment might later have moved the Claimant elsewhere make the Tribunal’s finding of permanent assignment erroneous.

2. Indirect discrimination and reasonable adjustments. The appeal on these claims succeeded. The Tribunal had found that tipping lorries was a provision, criterion or practice applied in the RRU and that it disadvantaged people with the Claimant’s disability. It then treated pushing and pulling cages as separate from tipping. That was inconsistent with its finding that tipping in the RRU included taking cages from lorries. The evidence could support the Claimant’s case that this work aggravated his back condition. The Tribunal also wrongly treated the employer’s knowledge of disadvantage as part of the indirect discrimination test. Such knowledge is not an element of section 19, though knowledge of discriminatory effect may be relevant to justification. The brief reliance on occupational health advice did not cure the fundamental error in the reasonable-adjustments analysis or address whether other suitable work existed.

3. Victimisation. The Tribunal erred in referring to affirmation as disposing of a statutory victimisation complaint. That error did not affect the result. Its findings, made after hearing the relevant witnesses, were that the 2017 grievance had not influenced the Respondent’s decisions and that occupational health advice was the sole reason for the move to the RRU and subsequent adjustments. Those findings sufficiently addressed the relied-on detriments and rendered the error immaterial. The appeal on victimisation was dismissed.

4. Disposal. The appeal succeeded on Grounds Two, Three, Four and Six, and was dismissed on the remaining grounds. Applying Jafri v Lincoln College [2014] EWCA Civ 449, the indirect discrimination and reasonable-adjustments complaints were remitted for fresh determination. If either complaint succeeds, the Tribunal must then consider time limits. Applying the factors in Sinclair Roche and Temperley & Ors v Heard & Anr [2004] IRLR 763, remittal was to a freshly constituted Tribunal, having regard to the time elapsed, limited factual overlap, the need for an open mind and the serious flaws in the earlier decision.

1. Employment Appeal Tribunal: In [2026] EAT 149 , the appeal succeeded on Grounds Two, Three, Four and Six. The indirect discrimination and reasonable-adjustments complaints were remitted to a freshly constituted Employment Tribunal; the remaining grounds were dismissed.
2. Newcastle Employment Tribunal: By judgment dated 24 October 2023, with written reasons sent on 15 March 2024, the Tribunal dismissed all claims.