Status of employee after TUPE objection

08 June 2015

Does the TUPE transfer of a contract of employment amount to an offer of employment?

No, held the Employment Appeal Tribunal (EAT) in NHS Direct v Gunn.

With thanks to Daniel Barnett’s employment law bulletin for the following case summary.

The Claimant (who was disabled) worked 8.5 hours a week for Shropshire Doctors on a service which was due to transfer to NHS Direct, who informed her that she would have to work at least 15 hours. She could not manage this, so asked for 10 hours. This was rejected. She objected to the transfer and was redeployed by Shropshire Doctors.

NHS Direct applied to have her disability discrimination claim struck out as she was not entitled to bring a claim - she was neither their employee nor an applicant.

The ET dismissed the application. Leaving aside TUPE, NHS Direct had made an offer of new terms to the Claimant. Hence, she was an applicant. NHS Direct appealed.

The EAT rejected the appeal but for an entirely different reason. The EAT held that the transfer of the Claimant's contract under TUPE was not an offer of employment so she was not an applicant.

However, after the hearing the EAT noted that NHS Direct had also made an "offer of suitable alternative employment" to the Claimant in light of a potential redundancy situation post-transfer. This made her an applicant. The parties were invited to make submissions on this new point. The EAT exercised its discretion to consider it, and decided that the claim should not be struck out but on different grounds.