A recent EAT decision emphasizes that while TUPE protects terms upon transfer, it does not shield an employer from claims post-transfer.

For many businesses, outsourced services are part of the landscape, helping companies to manage costs and focus on key business areas. However, TUPE transfers arising from outsourcing and insourcing can still create challenges. A recent decision of the Employment Appeal Tribunal (EAT) in Anne & Others v. Great Ormond Street Hospital for Children NHS Foundation Trust provides an important reminder that where a TUPE transfer creates a situation in which employees are employed on different terms across a workforce, the fact of the TUPE transfer does not automatically shield an employer from claims arising from discriminatory differences.

Most employers are aware that TUPE ordinarily prevents changes to contractual terms post-transfer and often attempts to change terms and conditions will be met with resistance. However, employers can be unaware of the fact that failure to address inequalities arising from inherited terms which put a group of employees at a disadvantage, may expose them to liability.

Although the case has some NHS-specific facts, its implications are much broader. Any employer bringing services in-house, or acquiring a workforce through a TUPE transfer, should carefully consider how they handle post-transfer harmonisation. This case emphasises that while TUPE protects terms upon transfer, it does not justify creating...

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