2: Permanently absent employee did not transfer under TUPE
In BT Managed Services Ltd v Edwards, the Appeal Tribunal has considered whether an employee who was permanently unfit for work was assigned to an organised grouping of employees for the purposes of the service provision change rules under TUPE.
Mr Edwards was employed by BT Managed Services (BT) as part of a team which provided mobile phone network maintenance. In 2006 he commenced long-term sick leave and it became clear that there was no prospect of him returning to work. He was kept on the books as permanently absent in order that he could receive PHI benefits. In June 2013, Mr Edwards’ team was transferred to Ericsson Ltd in a service provision change under TUPE. Ericsson refused to accept Mr Edwards on the grounds that he was not assigned to the contract at the time of the transfer because of his long-term absence.
The Tribunal held that Mr Edwards did not transfer under TUPE because he did not contribute to the economic activity of the transferring group of employees. Although a link remained between him and his team, this was for administrative purposes only. BT appealed to the Appeal Tribunal, arguing that there was no requirement under TUPE or case law that in order to be assigned to an organised grouping, an individual had to contribute to its economic activities.
The Appeal Tribunal confirmed that the Tribunal’s decision was correct, agreeing that Mr Edwards’ only link to the transferring grouping was a very limited administrative connection. Since he played no part in the economic activities of the team and would never do so in the future, he had to be excluded from the TUPE transfer.
It is important to remember that deciding whether an employee is assigned to an organised grouping for the purposes of TUPE will depend on the particular facts. If an employee is off sick but able to return to work at the time of the transfer or in the foreseeable future, the Appeal Tribunal has confirmed that it will be useful to consider which grouping the employee would be required to work for. However, an employee who is permanently absent due to illness, and therefore makes no contribution to the economic activity of the transferring business, is unlikely to transfer.
23 November 2015