TUPE Transfer

Hello, today’s case concerns everyone’s (least) favourite employment law issue, TUPE.  Before you all collectively groan I would like to draw you attention to the accompanying image which makes any TUPE article more amusing.

Today’s question:

Should an employee who is permanently incapacitated but still employed TUPE over to a new employer?

Mr Edwards, the Claimant, was employed by BT Managed Services Ltd, the 1st Respondent, as a Field Operations Engineer. After 12 years of service the Claimant was stricken by a series of medical problems including a cardiac condition which prevented him from doing the strenuous work his role required.

The 1st Respondent did not have any suitable alternative roles for the Claimant and despite being permanently incapacitated kept him on as an employee so he could enjoy Permanent Health Insurance payments, after this expired he remained on the company’s books and received discretionary sick pay.

The Claimant’s department was then sold to Ericsson Ltd, the 2nd Respondent. The Claimant, despite still being on the books of the 1st Respondent, had not worked for 5 years. The rest of the Claimant’s department TUPE transferred from the 1st Respondent to the 2nd Respondent. However, the Claimant did not transfer.

The Claimant bought his case to Tribunal. The ET ruled that despite still being assigned to Field Operations department the Claimant had not actively participated in that department for a considerable amount of time and would be unlikely to do so in the future. This made the assignment only administrative and therefore the 2nd Respondent had no responsibility to transfer the Claimant’s employment and therefore the liability fell to the 1st Respondent.

The 1st Respondent appealed citing the Claimant’s position similar to that of an employee on maternity leave or long term sick meaning that they should have TUPE transferred to the 2nd Respondent.

The EAT rejected the appeal stating that most absent employees will have some involvement in the economic or practical functioning of a group, if not immediately then in the future, in the Claimant’s case this was not possible. The appeal was dismissed.

To answer today’s question, no. An employee who has no economic involvement in the functioning of a transferring group of employees does not have to transfer. In the event that an employee a transferor’s company is permanently off work then the transferee is not obliged to undertake their employment.

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