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TUPE: Long-term sick employee not 'assigned'

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 Thanks to Ed McFarlane of Deminos HR for preparing this case summary

Can an employee who is permanently off work sick be assigned to an organised grouping of employees in the event of a TUPE transfer?

No, held the EAT in BT Managed Services Ltd v Edwards.

The Claimant, a field operations engineer, had been off work for over 5 years with no indication of him ever returning. He had received PHI benefits, until that was exhausted, then discretionary sick pay. He remained 'on the books' of a particular unit. When that unit transferred from BT Managed Services to Ericsson, an employment tribunal held that Mr Edwards did not transfer as he was not assigned to the grouping of transferred employees.

Dismissing the appeal, the EAT held that to be assigned to an organised grouping, an absent employee "will generally require some level of participation or, in the case of temporary absence, an expectation of future participation in carrying-out the relevant activities on behalf of the client" and contrasted permanent inability with long-term sick or maternity leave, where the absence might be regarded as temporary. An administrative connection with a transferring grouping (e.g. for pastoral purposes) would not suffice for a transfer:

"Mere administrative connection to that grouping is insufficient to constitute an employee as being assigned to the grouping in the absence of some participation in the grouping's economic activity."