Background
Mr McConnell worked at Morrisons’ Stockton-on-Tees distribution centre and had a disabling back condition. After occupational-health advice, he moved permanently to the Returns & Recycling Unit, where unloading returned trailers involved pushing and pulling wheeled cages. He maintained that this work aggravated his condition and that driving forklift trucks elsewhere in the warehouse would have been more suitable.
When the unit was outsourced in January 2023, Morrisons treated Mr McConnell as assigned to the transferring operation because he had worked there exclusively for more than two years. He objected to the transfer, and his employment ended on the transfer date. The Employment Tribunal dismissed his TUPE, disability-discrimination, reasonable-adjustments, victimisation, and related claims, also concluding that the claims were out of time.
The Court’s Holding
The Employment Appeal Tribunal upheld the finding that Mr McConnell was assigned to the transferring unit for TUPE purposes. Assignment was a factual question, and the Tribunal had permissibly considered his exclusive and permanent work in the unit rather than relying solely on a percentage calculation. Whether the decision that originally placed him there was unlawful did not alter his actual assignment at the transfer date.
The EAT nevertheless held that the Tribunal had fundamentally misanalysed the indirect-discrimination and reasonable-adjustments claims. Having found that the relevant practice was “tipping” trailers, it failed to recognise that pushing and pulling cages was part of that activity in the unit. It also wrongly introduced employer knowledge into the indirect-discrimination analysis and did not adequately consider possible adjustments.
Although the Tribunal had also erred by invoking contractual “affirmation” when addressing victimisation, its separate finding that the protected act was not the reason for the challenged treatment was sufficient to preserve dismissal of that claim. The EAT allowed the appeal only on the indirect-discrimination, reasonable-adjustments, and associated time-limit grounds, remitting them to a freshly constituted Employment Tribunal.
Key Takeaways
- TUPE assignment depends on the employee’s factual and organisational connection to the transferring operation, not on whether the earlier decision placing the employee there was lawful.
- A tribunal must connect the identified provision, criterion, or practice with all duties inherent in that practice when assessing disadvantage and reasonable adjustments.
- Employer knowledge is not an element of indirect discrimination, although it may bear on justification; knowledge remains relevant to the reasonable-adjustments duty.
Why It Matters
The decision separates two questions that can arise together during outsourcing: whether an employee factually belongs to the transferring operation and whether the employer discriminated in assigning or retaining that employee there. An unlawful employment decision may support an Equality Act remedy without preventing a TUPE transfer.
It also underscores the need for Employment Tribunals to define workplace practices and resulting disadvantages precisely. Because the original analysis took a fundamentally wrong turn, the remaining disability claims and any applicable time-limit issues must be determined afresh by a new Tribunal.