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Published 14 May 2015
Today (Thursday 14th May) the Employment Appeal Tribunal gave its decision on the case of Gunn v South Central Ambulance Service NHS Foundation Trust (SCAS). Leading healthcare law firm DAC Beachcroft LLP acted for the Respondent. The case considered whether an employee whose employment is due to transfer automatically under TUPE is entitled to resign before the transfer and still bring a discrimination claim against the transferee.
Mrs Gunn was employed by Shropshire Doctors Co-operative Ltd which provided an NHS 111 service until 19th March 2013, at which point the service transferred to NHS Direct. Mrs Gunn was one of the employees expected to TUPE transfer into the employment of NHS Direct. She had requested to work 10 hours per week once she transferred to NHS Direct, on the basis that she was disabled and could only work that number of hours. She had worked only 10 hours per week at Shropshire Doctors. NHS Direct declined her request, stating that 15 hours work was necessary to maintain safe practice. In response to this Mrs Gunn resigned prior to the transfer and brought a claim of disability discrimination against NHS Direct for failure to make reasonable adjustments.
The Trust argued that Mrs Gunn was not entitled to bring a claim of disability discrimination against NHS Direct because she was never an employee of theirs and did not fall within any of the protected categories of worker set out in the Equality Act. On this point of law, the Employment Appeal Tribunal (EAT) agreed with the Trust. After remarking that his judgment represented important guidance, the President of the EAT, Mr Justice Langstaff, stated that a person whose employment is due to transfer under TUPE does not automatically fall within the category of job applicant. Therefore such individuals cannot be regarded as applicants for employment which, in effect, they already enjoy – being entitled to the same terms and conditions pre and post transfer.
Mrs Gunn's claim in the employment tribunal was however allowed to proceed on a separate point: Mrs Gunn was sent a letter by NHS Direct before the transfer date, offering her a position at a different site. That meant she had been offered employment by NHS Direct and so fell within the protected category under the Equality Act.
Melanie Saunders, Assistant Director of HR at South Central Ambulance Service NHS Foundation Trust, said: "This case is an historic claim and was inherited by SCAS as the successor body when NHS Direct was dissolved in March 2014. It does not involve any of SCAS' employees or management. We have seen the Employment Appeal Tribunal's decision and are pleased that the Court agreed with the Trust on the point of law we appealed. The claim will now proceed in the Employment Tribunal and so we are not in a position to comment further."
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