In the case of BT Managed Services v Edwards, the EAT stressed that an employee must be “assigned” to the transferring part of the business. They must either be actively participating in it or only be absent on a temporary basis.
Here Mr Edwards was only kept “on the books” so that he could benefit from its permanent health insurance scheme. 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.
The EAT’s decision shows a pragmatic approach to the TUPE Regulations but employers must be careful. Mr Edwards had been absent for several years. He had a chronic medical condition and would not return to work.The EAT distinguished this case from scenarios where employees are on maternity leave or long-term sick leave at the time of the TUPE transfer. In those cases, the absence could be temporary, depending on the facts in question.
Should a decision be made that an employee on long term sickness, perhaps of many months, will not be included in a transfer, this could be a breach of both TUPE and the Equality Act. It has to be clear that they will not return to work.
Make sure you have this question addressed in a medical report.