TUPE long term sick employee not 'assigned'

BT Managed Services Ltd v Edwards

In this case, the Employment Appeal Tribunal (“EAT”) held that an employee who is permanently off work sick cannot be assigned to an organised grouping of employees in the event of a TUPE transfer.

The Claimant was a field operations engineer who had been off work on long term sickness for over 5 years, with no sign of a likely return. The Claimant had at first received PHI benefits, until they were exhausted, then discretionary sick pay, and remained 'on the books' of a particular unit. When that unit transferred from BT Managed Services to Ericsson, an employment tribunal held that the Claimant did not transfer, as he was not assigned to the grouping of transferred employees.

The EAT dismissed the appeal on the grounds that an administrative connection with a transferring grouping would not suffice for a transfer. For an absent employee to be assigned to an organised grouping it "will generally require some level of participation or, in the case of temporary absence, an expectation of future participation in carrying-out the relevant activities on behalf of the client"

In Practice

"This case shows that it is necessary for transferees in a TUPE situation to look carefully, during due diligence, at the transferor’s list of employees and to ask the right questions. Any employees on long-term sick are unlikely to be part of the transfer following this case and it will be useful for the transferor to quote it to avoid taking on what they will potentially perceive to be a problematic employee," says Employment Solicitor Chris Dobbs.

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