EAT: TUPE assignment turns on where staff work, not why placed there

A disabled Morrisons distribution worker assigned full-time to a recycling unit for over two years was assigned to that unit for TUPE purposesNationalarchives and would have transferred with it on outsourcing had he not objectedNationalarchives, even if his placement there was itself discriminatoryNationalarchives, the Employment Appeal Tribunal has held in McConnell v WM Morrisons Supermarkets Ltd ([2026] EAT 149, 25 September 2026). The lawfulness of why an employee works in a transferring department is a remedy question for any discrimination claim, not part of the assignment test under TUPE.Nationalarchives The disability complaints were remitted to a fresh tribunal.Nationalarchives

The claimant worked at Morrisons' Stockton-on-Tees distribution centre from May 2000. A 2010 accident left him with a disabling back condition, accepted as disability from 2012. He moved to the Returns & Recycling Unit part-time in November 2017 and permanently from 2020 on occupational-health advice; a COT3 agreement recorded that he would no longer do picking work. After operations changed so recycling arrived in wheeled cages pushed and pulled by hand, he complained the cage work aggravated his back, but Morrisons kept him there in reliance on a 9 January 2020 occupational-health report. In January 2023 the unit was outsourced: over the previous 26 weeks he had spent 100% of his time there, so Morrisons identified him as in the transferring group. He objected to the transfer and his employment ended on 29 January 2023. The Newcastle Employment Tribunal dismissed all claims after a four-day hearing in October 2023.

On assignment, the EAT confirmed there is no rigid formulaNationalarchives: the percentage of time in the unit is not the test but may be a starting pointNationalarchives, and the tribunal had also weighed permanence against the comparators' temporary placements and the contractual position. Even unlawful victimisation placing a worker in the unit does not alter whether he formed part of its organisational framework at the transfer date.Nationalarchives A later finding that he should have been moved elsewhere as a reasonable adjustment would not retrospectively make a two-year permanent posting temporary.Nationalarchives

The victimisation complaint failedNationalarchives despite an admitted error: the tribunal invoked affirmation, a doctrine with no place in the Equality Act 2010 victimisation test, over the October 2017 grievance said to have caused his removal from tramming work, denial of loading training and the move to the unit. The EAT held the error immaterialNationalarchives because the tribunal separately found the sole reason for the move and the subsequent adjustments was the occupational-health adviceNationalarchives, a reason-why finding covering all three detriments.

The appeal succeeded on the indirect discrimination and reasonable-adjustments grounds.Nationalarchives The tribunal correctly identified the practice as tipping trailersNationalarchives and found group disadvantage through increased pain and tirednessNationalarchives, then lost sight of its own finding that tipping in the unit included taking cages off lorriesNationalarchives, treating his cage-handling evidence as outside the PCPNationalarchives. It also wrongly weighed employer knowledge inside the section 19 testNationalarchives, where knowledge bears only on justification, and disposed of the reasonable-steps question in a single brief finding that ignored placements beyond the Ambient warehouse. The findings that the practice applied in the unit and that group disadvantage was proved standNationalarchives; the rest, including time limits, goes back for fresh determinationNationalarchives.

Remittal is to a fresh tribunalNationalarchives: three years have passed since the 2023 hearing, the tribunal had formed an adverse view of him, and the affected reasoning could fairly be described as totally flawed.

Legal basis: regulations 2 and 4 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 and sections 19, 20, 21 and 27 of, and Schedule 8 paragraph 20 to, the Equality Act 2010.