TUPE and Indirect Discrimination in Anne & Others v Great Ormond Street Hospital
EAT confirms leaving transferred staff on inferior terms can amount to indirect discrimination, even under TUPE.
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In the recent case of Rentplus UK Ltd -v- Coulson, the Employment Appeal Tribunal (EAT) held that an employer cannot escape the requirements of the Acas Code of Practice by disguising a dismissal as a redundancy.
28 July 2022
Case Study
Following her redundancy, which was purportedly for reasons of ‘cost cutting’, Ms Coulson successfully brought claims of sex discrimination and unfair dismissal in the employment tribunal (ET). Not only did the ET find that her dismissal unfair because the redundancy was a sham, but also because her sex was a factor in the decision. In making its award of compensation, the ET applied the maximum uplift available under the Acas Code.
Rentplus UK Limited appealed the decision to award the uplift on the basis that firstly, the uplift had been incorrectly awarded, and secondly, the ET had failed to explain its reasoning behind the award of the uplift.
Case Study
While the EAT noted that the tribunal had failed to correctly identify the specific breach of the Code, and criticised this aspect of the judgment, it held that there was no error of law in awarding the uplift and the ET was entitled to make the award. The EAT was satisfied with the tribunal’s finding that the dismissal process was a sham, and also found that the claimant’s grievance was handled in a similarly appalling manner. This further failure on the part of the respondent indicated that the ET was just and equitable in awarding the maximum uplift available to them of 25%.
The judgment itself contains a helpful reminder of the test set out in the Trade Union and Labour Relations (Consolidation) Act 1992, which clearly identifies the questions a tribunal should ask when considering whether to apply the Acas uplift, and therefore, the points employers should be mindful of when contemplating a dismissal. The questions include:
This decision highlights the importance of using the correct process when terminating employment and ensuring that you are not opting to use the redundancy process simply because it is considered the ‘easier’ or less controversial option.
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