Can employees on long-term sick leave transfer under a tupe transfer?
In the case of BT Managed Services Limited v Edwards and Another, UKEAT/0241/14, the Employment Appeal Tribunal held that an employee who was on long-term sick leave and receiving permanent health insurance was not assigned to the service that was subject to a service provision change.
Mr Edwards worked for an IT and communications service provider. From May 2006, he was on long periods of sick leave and, from January 2008, did not attend work.
Mr Edwards was a recipient of permanent health insurance by 2009.
On 1 June 2013, the part of the service that Mr Edwards was working on transferred to Ericson. BT Managed Services Limited maintained that Mr Edwards’ employment transferred, notwithstanding his absence on sick leave. However, Ericson refused to accept that Mr Edwards’ employment transferred on the basis that his long-term absence prevented him from being assigned to the services at the time of the transfer.
The Employment Tribunal (ET) held that Mr Edwards was not assigned to the services immediately before the transfer. BT Managed Services Limited appealed.
The Employment Appeal Tribunal dismissed the appeal. In it’s view, the key question was whether it was necessary for Mr Edwards to be actually involved in the work carried out by the service that was subject to the transfer in order to be deemed to be assigned.
The Employment Appeal Tribunal concluded that to be assigned to the service, something more than mere administrative or a historical connection is required.
The Employment Appeal Tribunal held there should be some level of participation and, if the employee is absent on a temporary basis, there is intention that the employee will at some point in the future return to undertake the role. In this case, it was clear that there was a permanent inability for Mr Edwards to continue to work and permanent inability should be distinguished from temporary inability.
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