InsightsInsight - Employment & HR - POSTED: September 9 2015
Employee on long term sick leave does not transfer
The Tribunal has looked at whether an employee who is permanently off work sick can be assigned to an organised grouping of employees in the event of a TUPE transfer, meaning that he or she moves to the new company.
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This point was considered by the Employment Appeal Tribunal (EAT) in the case of BT Managed Services ltd v Edwards. In this case, the employee was a field operations engineer. He had been on sick leave for over 5 years and it was not anticipated that he would be returning to work although he was technically still assigned to the particular unit where he had worked before he became ill.
That unit transferred to Ericsson and an employment tribunal decided that the employee did not transfer because he was not assigned to the grouping of transferred employees. The issue was considered again by the EAT who concluded 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”.
A technical connection with a transferring grouping would not be enough for there to be a transfer.
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