McConnell v WM Morrisons: EAT upholds TUPE assignment finding but remits disability claims

The Employment Appeal Tribunal has held that the lawfulness of an employer's original decision to redeploy an employee forms no part of the test for whether that employee is "assigned" to an organised grouping for TUPE purposes. In the same judgement, however, it found that the employment tribunal had fundamentally misunderstood the claimant's indirect discrimination and reasonable adjustments complaints, and sent them back for fresh determination.

In McConnell v WM Morrisons Supermarkets Ltd [2026] EAT 149, His Honour Judge Feeny allowed the appeal in part against a decision of the Newcastle Employment Tribunal, which had dismissed all of the claimant's complaints following a four-day hearing in October 2023.

Background

The claimant, employed at the respondent's Stockton-on-Tees distribution centre since 2000, had a disabling back condition. Following occupational health advice in early 2020, he was moved permanently to the Returns and Recycling Unit (RRU). Shortly afterwards, the respondent changed its operations so that recycling was returned in wheeled cages pushed and pulled by hand, rather than on pallets moved by forklift. The claimant complained that this aggravated his condition and maintained that forklift work in the Ambient warehouse was better suited to him.

In January 2023, the RRU operation was outsourced under TUPE. Having spent 100% of his time in the RRU over the preceding 26 weeks, the claimant was identified as in scope. He objected to the transfer and his employment ended on the transfer date.

Assignment

The claimant argued that the tribunal had relied too heavily on a percentage-of-time approach and had failed to consider that he was only in the RRU because of unlawful victimisation or a failure to make reasonable adjustments.

HHJ Feeny rejected both points. The tribunal had made its own assessment, considering the temporary or permanent nature of the placement and the contractual position, rather than relying solely on percentages. Where unlawful victimisation results in an employee's unwilling placement in a transferring grouping, that is a consequence of the victimisation and potentially a matter of remedy. It does not affect the separate factual question, derived from Botzen, of whether the employee formed part of the organisational framework at the point of transfer. To hold otherwise would conflate the legality of the employer's treatment with that factual question.

Indirect discrimination and reasonable adjustments

The appeal succeeded here. The tribunal had correctly found that the provision, criterion or practice (PCP) of tipping trailers was applied and caused group disadvantage. It then concluded that the pushing and pulling of cages was unrelated to that PCP, which was inconsistent with its own earlier finding that tipping in the RRU included taking cages off vehicles. It also wrongly took account of the emptying of cages, a task never said to form part of the claimant's role, and erroneously referred to the employer's knowledge of disadvantage in the section 19 analysis.

The respondent's argument that the outcome was saved by a brief finding on reasonable steps was rejected. A short disposal of that element could not rescue a decision that had gone wrong at the outset, particularly where the claimant's wider case on alternative roles had not been addressed.

Victimisation

Although the tribunal erred in treating the claimant as having "affirmed" a breach, a doctrine with no place in the statutory victimisation test, its clear finding that the sole reason for the move to the RRU was occupational health advice was sufficient to dispose of all three detriments. That ground was therefore academic.

Disposal

The appeal succeeded on Grounds Two, Three, Four and Six. The indirect discrimination and reasonable adjustments complaints, together with time limits, were remitted to a freshly constituted tribunal. Applying Sinclair Roche & Temperley v Heard, the judge cited the three-year delay, the discrete nature of the remitted issues, and the original tribunal's evidently dim view of the claimant. The findings that the PCP applied and that group disadvantage was established will stand.