Jo Broadbent: Addressing long-term sick leave during unit transfers


A recent Employment Appeal Tribunal (EAT) decision found that an employee on long-term sick leave did not transfer under Transfer of Undertakings (Protection of Employment) (Tupe) to a new employer with other employees when the part of the business in which he worked before his absence transferred.

In the case of BT Managed Services v Edwards the claimant worked in the domestic network outsource (DNO) team. He was absent from work with a heart condition from January 2008 and Tupe transferred to BT in 2009.

The DNO contract Tupe transferred again in 2013. The EAT had to decide whether the claimant remained assigned to the DNO team, despite his lengthy absence. If he was assigned, he would Tupe transfer to the new provider. Otherwise, he would remain in the employment of BT.

The EAT confirmed that to be assigned to a particular group of employees there must be some level of participation, or a future expectation of participation, in carrying out activities on behalf of a client. A historical or administrative connection to a particular team is not sufficient.

Here, the claimant had a very limited administrative connection with the DNO team that was not based on his present or future participation in economic activity. It was common ground that he was permanently unable to work and a return to work was not being pursued. He was not “assigned” to the DNO contract in any meaningful sense.

The position of employees on long-term sick leave should be carefully assessed if the unit for which they have previously worked is going to be transferred. However, this was an unusual situation. The claimant had been unable to work for six years and there was no prospect of a return to work.

Different considerations apply if someone is temporarily absent from work or there is a prospect of an absent employee returning to work.

Jo Broadbent is of counsel at Hogan Lovells