Sick employees and TUPE

07 October 2015

In another TUPE case, the issue was about who does and who doesn’t transfer. In particular, is a long-term sick employee who isn’t working “assigned immediately before the transfer” so that their employment transfers under TUPE?

BT Managed Services v Edwards

In another TUPE case, the issue was about who does and who doesn’t transfer. In particular, is a long-term sick employee who isn’t working “assigned immediately before the transfer” so that their employment transfers under TUPE?  Mr Edwards was considered to be permanently sick. There were no prospects of him returning to work but BT had kept his employment going so that he could benefit from a PHI scheme and, once that had come to an end, similar payments from BT.

There was a service provision change. The new service provider went on to claim that Mr Edwards had not transferred to become its employee. The tribunal agreed. It held that Mr Edwards was not assigned to the organised grouping because he did not contribute to its economic activity.

The Employment Appeal Tribunal upheld that decision. Mr Edwards wasn’t participating (and wasn’t expected to participate) in the activities carried out by the group. An employee who had no connection with the economic activity of the grouping and would never have one in the future could not be regarded as being assigned to that grouping. Mere administrative connection isn’t enough; there needs to be some participation in the group’s economic activity.

Treat this decision with some caution, whether you are the transferor or transferee. It doesn’t mean that no long-term sick employees will transfer under TUPE. Think about the prospect of the employee returning to work. Think, too, about their contribution to economic activity. Both are crucial factors in determining whether or not they’ll transfer.

 


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