The Employment Appeal Tribunal has held that an employee whose return to work was not expected following long-term sickness absence did not transfer under the TUPE Regulations 2006 as he was not assigned to an organised grouping of employees.
The Regulations define an organised grouping of employees by reference to them performing a particular economic activity. The employee in this case, BT Managed Services Ltd v Edwards and anor, was permanently incapacitated and therefore unable to perform the activity. He was therefore not assigned to that grouping.
Mr Edwards was a Field Operations Engineer. He worked in a team providing assistance to mobile phone networks. The team operated as its own entity within BT Managed Services Limited. Mr Edwards suffered with a cardiac condition and was permanently incapacitated following attempts to adjust his work. Mr Edwards was assessed as having no prospect of returning to work. His employer kept him “on the books” to enable him to receive benefits under its permanent health insurance (PHI) scheme and on cessation of the scheme he continued to receive payments from his employer. The work carried out by his team was transferred to E Ltd who did not accept that Mr Edwards had transferred with the group. E Ltd accepted that this was a service provision change but they argued that he was not assigned as set out in Regulation 4 of the 2006 Regulations.
The Employment Tribunal held that Mr Edwards did not transfer to E Ltd and he therefore remained employed by BT Managed Services Limited. The Judge concluded that, at the time the decision was made to put Mr Edwards on permanent sick leave, he remained linked to his team but for administrative purposes only. BT Managed Services Limited appealed the decision.
The appeal was dismissed. It was concluded that the case law was clear and that, while a link between the employee and the work carried out is sufficient in itself to constitute an assignment to a relevant organised grouping, something more than a mere administrative or historical connection is required. There had been no participation by Mr Edwards since 2008 when he went on sick leave. Had Mr Edwards been able to return in the foreseeable future then the outcome may have been different.
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