Posted by Gemma Ospedale, Partner
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TUPE and the long term sick and assignment
In BT Managed Services Limited v Edwards and another, the EAT looked at the situation where an employee on long term sick was, or could have been, part of an organised grouping of employees transferring under TUPE in a TUPE transfer situation. It held that the definition of an organised grouping, having as its particular purpose the carrying out of the activities transferring, specifically referred to the actual carrying out of these activities. Since someone on long term sick was unable to carry out any activities, by definition they were excluded from being “assigned” to the grouping going forward.
The employee was a field operations engineer with BT MS Limited. In 2006 he went on long term sick with a heart condition but, despite the employer’s attempts to find him less strenuous work, he was unable to return to work and he was eventually considered to be permanently incapacitated without any prospect of returning to work. BT MS Limited allowed him to remain an employee so that he could benefit from payments under the PHI scheme and even after these benefits were exhausted, they continued to pay him. When the contract for the work which he undertook was transferred to another company in 2012 the employees working on that contract were accepted as transferring under TUPE – however the transferee refused to accept that Mr Edwards transferred with the group, arguing that he was not assigned to it because he was not physically carrying out the work.
The Employment Tribunal agreed on the basis that the only reason he remained employed was a pragmatic decision taken by BT MS Limited to keep him in employment so that he could benefit from the PHI payments. The only link between him and the team transferring to the transferee was an administrative one and there was no question of him ever being able to return to work or carry out any of the activities transferring.
The EAT agreed and dismissed an appeal from the employer. It considered there must be some form of participation in the activities or, if there is a temporary absence, the expectation of a return to work and carrying out the activities transferring, for the person to be assigned to the group. It held that the organised grouping is partly defined by the work carried out by it and someone who plays no part in the performance of that work cannot be a member of the group and so cannot be assigned to it.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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