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The EAT found that failing to harmonise terms post-TUPE transfer can amount to indirect race discrimination, reinforcing employer responsibilities.
25 March 2026
Case Study
The case of Anne & Others v Great Ormond Street Hospital for Children NHS Foundation Trust demonstrates the risks of leaving transferred employees on inferior terms and conditions post-TUPE.
The claimants were a group of 80 cleaners of BAME background who transferred to the hospital under TUPE when the cleaning service they worked for was brought in-house. Post-transfer, they remained on their original contractual terms, which were significantly less favourable than those of directly employed hospital staff. Disparities included pay, sick pay, annual leave, and pension benefits, and persisted for over a year.
The employees brought claims for indirect race discrimination, arguing that the continued inequality in terms placed them at a disadvantage compared with in-house staff. At first instance, the Employment Tribunal agreed, finding that the disparities disproportionately affected a racially diverse group and therefore amounted to indirect discrimination.
The employer argued that harmonisation was not feasible due to cost and economic uncertainty. However, the Employment Appeal Tribunal upheld the ET’s decision, confirming that leaving staff on inferior inherited terms was a discriminatory provision, criterion, or practice (PCP) that could not be justified. The EAT emphasised that intention is irrelevant, even if the employer did not intend to discriminate, failing to address the disparities could still constitute indirect discrimination.
The judgment serves as a reminder that TUPE protections do not automatically shield employers from claims arising from post-transfer inequalities. This applies across all TUPE scenarios, including service provision changes and re-tendering exercises.
Case Study
The Employment Appeal Tribunal (EAT) upheld the Employment Tribunal’s finding of indirect race discrimination, confirming that leaving transferred staff on inferior contractual terms post-TUPE amounted to a discriminatory provision, criterion, or practice (PCP). The claimants were successful.
The EAT explained that even though the disparities arose from inherited terms under TUPE, the hospital could not justify maintaining the inequalities. The employer argued that harmonising terms was too costly and posed economic uncertainty, but the tribunal found these reasons insufficient. The lack of discriminatory intent was irrelevant, liability arises from the effect of the PCP, not the employer’s motives. The EAT emphasised that the same principles apply to all TUPE scenarios, including service provision changes and re-tendering exercises.
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