The Employment Appeal Tribunal has recently held that an employee who was on long term sick leave and not expected to return to work was not assigned to an organised grouping of employees in the event of a TUPE transfer.
Mr Edwards worked for BT Managed Services as a mobile phone network operative. He commenced a period of prolonged sick leave due to a heart condition, and received benefits under the employer’s permanent health insurance until these were exhausted. He was regarded as permanently incapacitated and was not expected to return to work. Nonetheless Mr Edwards remained an employee of the business for several years and was kept ‘on the books’ for administrative convenience.
In 2012 the work undertaken by Mr Edwards’ notional team was contracted-out to Ericsson. It was not disputed that this outsourcing represented a service provision change for the purposes of TUPE, but Ericsson refused to accept that Mr Edwards should transfer on the basis that he was not assigned to the relevant undertaking due to his long term absence. An employment tribunal subsequently held that the link between the team and Mr Edwards was an administrative link only and so Mr Edwards did not transfer to Ericsson as he was not assigned to the grouping of transferred employees. BT Managed Services appealed the decision.
The Employment Appeal Tribunal dismissed the appeal and found that a link between an employee and a transferring undertaking requires something more than a mere administrative or historical connection for the employee to be “assigned” to it for the purposes of TUPE. There must be some kind of participation, or an expectation of future participation, in carrying out the relevant activities of the group of employees.
Mr Edwards was permanently unable to offer any participation to the group activities and so he was, almost by definition, excluded from being included in the assigned group of employees.
This is an unusual case as Mr Edwards was not expected to return to work but remained an ‘employee’ for administrative convenience, thus his connection with BT Managed Services was a very limited one.
It is important to remember that the decision only applies where an employee is permanently unable to return to work and will not apply in the case of any temporary absence. An assessment of an absent employee’s likelihood to return to work will need to be conducted in each case.
The case outlines the importance of identifying as early as possible those employees assigned to the organised grouping of employees that is subject to the relevant transfer, however difficult this may be.
For more information about this decision by the Employment Appeal Tribunal or to find out more about how the Employment team can help you, please email [email protected] or phone 0118 952 7284.
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