TUPE Case law

Responsibilities of the new employer

It is important to remember that the employer who is receiving the transferred employees is responsible for those new employees. This was illustrated in the case of NHS Direct v Gunn [2015]. Gunn was transferred to a new employer. Before she transferred she had had her hours reduced to 8.5 hours per week. This reduction was because she was disabled and was a reasonable adjustment to assist her to work.

The new employer wrote to her telling her that the location to which she would have transferred was to be closed down. She was offered suitable alternative employment by the new employer. The job she was offered was on 15 hours per week and they would not reduce this to 8.5 hours. She argued that this was a failure to make reasonable adjustments, and hence, she brought a claim of disability discrimination. She had never actually worked for the new employer.

The EAT ruled that the employee had the right to bring her claim of disability discrimination. By telling her that there was a redundancy situation and offering her suitable alternative employment, she had the same rights as a job applicant. Of course, a job applicant can bring a claim of discrimination.

In this situation, all that the new employer was legally required to do was to explain to Gunn the measures that it was going to take, in as much as they affected her employment. If they had only done that then it is unlikely that Gunn would have had any claim. However, by treating it as a redundancy situation and offering her other employment she had the same rights as a job applicant.