Alan Payne appears in NHS Direct NHS Trust v Gunn in which the EAT consider whether the TUPE transfer of a contract constitutes an offer of employment, and the interplay between the duty to make reasonable adjustments under the Equality Act 2010 and TUPE

The claimant had disabilities such that her hours of work for Shropshire Doctors were limited to 8.5. She was due to be transferred to the employment of NHS Direct, who notified her that she would be required to work at least 15 hours a week, and rejected her offer to work 10 hours. She objected to being transferred and was redeployed by Shropshire Doctors.
NHS Direct applied to have her disability discrimination claim against them struck out on the grounds that she was not either their employee or an applicant, and therefore did not come within the class of those who were entitled to bring a claim under the Equality Act 2010.
The ET held that she could claim against NHS Direct, dismissing NHS Direct’s argument that as she was not an “applicant” for a job with them she could not fall under s.39(1) of the Equality Act 2010. The ET held that, without considering TUPE, NHS Direct had made an offer of new terms to the claimant, and she was therefore an applicant.
NHS Direct appealed the dismissal of its application.
The EAT dismissed the appeal, holding that the claimant did come within the terms of s.39(1). This was not on the basis of the original proposed TUPE transfer: the EAT held that the transfer of the Claimant’s contract under TUPE was not an offer of employment as she could not be regarded as an applicant for employment she already enjoyed.
However, further argument was permitted and it was established that NHS Direct had contemplated ceasing work at the place where the Claimant had been employed post-transfer, thereby creating a potential redundancy situation. It was held that, in these circumstances, NHS Direct had made an “offer of suitable alternative employment”. It was this that made the Claimant an applicant, and was sufficient for the claim to proceed to a determination on its merits.
Alan Payne represented the Secretary of State before the EAT who intervened as an Interested Party in relation to the TUPE issue, making submissions that the Claimant did not fall within s.39 Equality Act 2010 by virtue of being an employee subject to a TUPE transfer.
The full text of the judgment may be found here: