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TUPE or not TUPE – that is the question

TUPE or not TUPE – that is the question

In a service provision change, if an employee is on long term sick leave is that employee still assigned to the group of employees that is transferring to the new employer. In other words does that employee also transfer over?

"No" said the Employment Appeal Tribunal (EAT) in the recent case of BT Managed Services v Edwards and Ericsson.

Mr Edwards, who worked for BT Managed Services (BTMS), had been on long term sick leave from his role in the domestic network outsource division (DNO) for 6 years due to a heart condition, having previously TUPE transferred over to BTMS from Orange. There was no prospect of him returning to work. He had exhausted his permanent health insurance and was kept on the books for administrative reasons only so he could receive discretionary sick pay from BTMS.

When the DNO division transferred over to Ericsson, Ericsson refused to accept him because it said his long term absence meant he was not assigned to the DNO immediately before the transfer.

The EAT agreed. It decided that Mr Edwards was not assigned to the organised grouping of employees which was transferring and so his employment did not transfer over to Ericsson. It explained that for an employee to be assigned to a grouping there must be:

  • something more than an administrative or historical connection; and

  • some level of participation in the activities which are the main purpose of the organised grouping. Or if the employee is absent on a temporary basis (for example, for family leave or sickness) there must be an expectation that the employee will participate in these activities in the future.

Whether an employee is or is not assigned will depend on the facts of each case. The facts here were very specific and are unlikely to apply in most cases: For example, Mr Edwards had been on sick leave for years and it could be shown that he was permanently unable to return to work.

Having said this, this case shows that it is worth transferees checking whether any of the employees who are said to be assigned to an organised group of employees are working. If they are not and if they are simply on the books for administrative reasons, there may be arguments to say that they are not in fact assigned to the transfer.

Click here for the EAT Judgement.