The Employment Appeal Tribunal has allowed part of an appeal by a Morrisons warehouse worker who lost every claim at the Newcastle employment tribunal.
What did the EAT decide?
In McConnell v WM Morrisons Supermarkets Ltd [2026] EAT 149, handed down on 25 September, His Honour Judge Feeny upheld the finding that Mr McConnell was assigned to a unit that transferred under TUPE, but remitted his indirect discrimination and reasonable adjustments complaints to a fresh tribunal.
He had worked at the Stockton-on-Tees distribution centre since 2000 and has been disabled by a back condition since 2012. Occupational health advice led to a permanent move to the Returns and Recycling Unit in 2020. When that unit was outsourced in January 2023, Morrisons decided who transferred by the percentage of time each night shift worker had spent there over the previous 26 weeks. His figure was 100%. He objected to the transfer, and his employment ended on the transfer date.
Why did the TUPE assignment finding survive?
He argued the tribunal had leaned on the percentage approach and ignored why he was in the unit at all, which he said was victimisation and a failure to make adjustments. The EAT accepted that the factual context may shed light on the nature of an assignment, but held that where unlawful victimisation leads to an unwilling assignment, that is a consequence of the victimisation and potentially a matter of remedy. It does not change whether the employee is assigned for TUPE purposes.
The judgment repeats the warning that percentage of time “might not be an irrelevant question, but it is not the test”. The tribunal had gone further than percentages: two comparators who spent no more than a quarter of their time in the unit were there under temporary adjustments with genuinely split duties, while his duties were not split.
Where did the tribunal go wrong on the disability claims?
Both complaints turned on a practice of tipping trailers. The tribunal found that practice applied and that it put people with his disability at a particular disadvantage, then reasoned that his evidence was really about pushing and pulling cages rather than emptying trailers. The EAT held that was inconsistent with the tribunal’s own finding that tipping in the unit included taking cages off the lorries.
The EAT also accepted that the tribunal was wrong to weigh the employer’s knowledge of the disadvantage when deciding the indirect discrimination claim, and that a brief finding that a move back to the Ambient warehouse had been ruled out by occupational health could not rescue the decision.
What happened to the victimisation ground?
The tribunal appeared to treat the claimant as having affirmed a breach, a doctrine with no place in the statutory victimisation test. The EAT called that a clear error of law, but held that the tribunal’s finding on why he was treated as he was, namely the occupational health advice rather than his 2017 grievance, was enough to dispose of the ground.
Why send it to a fresh tribunal?
Three years had passed since the original hearing, the remitted claims do not substantially overlap with the findings left undisturbed, and the original tribunal had formed what the EAT described as a “relatively dim view” of the claimant. Parts of the decision could fairly be called “totally flawed”. The findings that the practice applied and that there was group disadvantage stand. Everything else on those two complaints, including time limits, is open again. The claimant was represented pro bono through Advocate.
Frequently asked questions
What does “assigned” mean under TUPE?
Employees transfer only if they are assigned, other than on a temporary basis, to the organised grouping of resources or employees that transfers. Following Botzen, the question is which part of the business the employee was assigned to carry out their duties.
Does the percentage of time worked decide assignment?
No. It can be relevant, and 100% over two years was a reasonable starting point here, but the EAT repeated that it is not the test. What matters is whether the assignment was temporary or permanent.
Does an employer’s knowledge matter in an indirect discrimination claim?
Not as part of the section 19 test. Knowledge of disability and disadvantage are conditions of a reasonable adjustments claim, and in a section 19 claim knowledge is relevant to the justification defence.
What happens to the claim now?
A freshly constituted employment tribunal will decide the indirect discrimination and reasonable adjustments complaints again, and then time limits if either succeeds.