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02nd September 2015

TUPE: Is an employee off sick assigned to an organised grouping?

Mr Edwards was part of a team of employees working on a contract. From 2006, he went on long term sick leave. Due to his medical condition, he could not return to work at all, and was subsequently accepted onto his employer’s permanent health insurance scheme.

Not if the employee is on long term sick leave, and is simply on the employer’s books for administrative purposes, according the Employment Appeal Tribunal (EAT) in BT Managed Services-v- Edwards and Another. Mr Edwards was part of a team of employees working on a contract. From 2006, he went on long term sick leave. Due to his medical condition, he could not return to work at all, and was subsequently accepted onto his employer’s permanent health insurance scheme. To stay on that scheme, he needed to remain on his employer’s books, and even after those benefits were exhausted, the employer permitted Mr Edwards to remain an employee in order to make various payments to him. At no time however did he carry out any work – the reason he was still an employee was simply for administrative purposes. When Mr Edward’s team transferred out to another employer under TUPE as a result of a transfer of the contract, that new employer claimed Mr Edwards did not transfer to them. They said that, as he was on long term – indeed indefinite – sick leave, and was only on the books for administrative purposes, he was not assigned to the organised grouping which did transfer out – ie, Mr Edwards’ remaining team members. The EAT agreed. So, when considering who makes up the organised grouping to decide who may or may not transfer under TUPE, it’s worth digging deeper if some members of the grouping are not in fact working – they may only be on the books for administrative convenience and therefore may not transfer under TUPE. For more information please visit our Employment Services page or contact Nick Hall on 01604 233233 or click here to email Nick.

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