EAT TRANSFER OF UNDERTAKINGS
TRANSFER OF UNDERTAKINGS – Objection to Transfer
PRACTICE AND PROCEDURE
PRACTICE AND PROCEDURE – Striking out/Dismissal
An employee whose disabilities were such that she worked 8.5 hours per week for her employer was part of a service which was to be taken over by NHS Direct NHS Trust (now known as South Central Ambulance Service NHS Foundation Trust). In advance of the transfer, NHS Direct let it be known that its employees worked a minimum of 15 hours weekly. She requested that this be adjusted for her case, to a minimum of 10. When this was rejected, she decided to object to her employment transferring, and she remained in the service of her current employers, albeit on reduced terms as to hours and pay. She claimed that NHS Direct had discriminated against her. To do so, she had to come within the class of those who could claim, as set out in s.39 Equality Act 2010 (‘EqA’). An EJ’s decision that she was an ‘applicant’ for a job within the meaning of that section, notwithstanding that she was guaranteed a continuation of her own contract under TUPE, was appealed. Following a review of the documents upon which this decision had been based, but after initial argument on the appeal had concluded, the parties were recalled for further argument, to the effect that what had occurred was that NHS Direct contemplated ceasing work at the place where the Claimant had been employed, thereby creating a potential redundancy situation, in which it was appropriate to write to her (as NHS Direct did) to offer suitable alternative employment. Leave was given to advance this argument. On this basis, the Judge was plainly right in the conclusion to which she came, and the appeal was dismissed.
Langstaff P J
[2015] UKEAT 0128 – 14 – 1405
Bailii
England and Wales
Employment
Updated: 30 December 2021; Ref: scu.547132
