Our Health and Social Care team has been representing Care England to date in its application and will be preparing the case for the next month’s hearing on 20-21 March.
Only employees who form part of an organised grouping of employees, assigned to carry out the services that are the subject of the transfer, will move to the new provider upon a service provision change under TUPE. The recent case of BT Managed Services Limited v Edwards and Another involved such a service provision change and an employee on sick leave.
Mr Edwards was employed by BT Managed Services Limited (BT). He developed a heart condition that prevented him from carrying out the work that was required for his role. Mr Edwards went on long-term sick leave in January 2008 and was in receipt of permanent health insurance (PHI) payments. He remained employed by BT in order to continue receiving the PHI payments. Even when the PHI payments ceased he remained on the employer’s books and was in receipt of some payments from them, but he did not carry out any further work during this time. In fact, he was deemed permanently incapacitated for work.
In December 2012 the service contract on which Mr Edwards had worked previously was transferred to Eriksson. There was no dispute that TUPE applied and that Mr Edwards' team transferred. The question was whether Mr Edwards was part of the organised grouping of employees at the time of the transfer.
The Employment Tribunal found, and the EAT agreed, that he was not, as it was not contemplated that the employee would ever provide work, or carry out any of the services, under the contract. They considered that the link between the employer and employee only served for administrative purposes and this was not enough for the employee to be assigned.
The EAT gave the following guidance in considering the assignment of an employee on sick leave:
- if an employee is absent from work at the time of the transfer, it will be matter of fact for the Tribunal to determine if they are part of the organised grouping that transfers or not;
- even lengthy absence will not preclude the employee from being assigned, but there must be some expectation of future participation in carrying out the relevant activities;
- the Tribunal must identify the organised grouping that transfers and then consider who is assigned to that group; and
- the organised grouping is defined in the TUPE Regulations by reference to the economic activities that the grouping pursues; an employee who plays no part in those economic activities will not be assigned to the grouping.
What does this mean?
It is important to distinguish between employees who are temporarily or permanently unable to work. It is clear that employees who are only on short-term absence, or those who are on longer-term absence but have some prospect of returning, will still be considered to be assigned to the organised grouping of employees and will therefore transfer.
This decision applies to employees who are both on long-term absence and who have no real prospect of returning. Whilst it is unlikely to apply frequently in TUPE transfers, the decision does provide grounds for challenging the inclusion of employees on long-term sickness on any TUPE lists. Our advice therefore is to ensure that your TUPE due diligence is carried out with care when it comes to employees on long-term absence.
For further information
Please contact Kate Watkins
Anthony Collins Solicitors has updated the National Community Land Trust (“NCLTN”) Model Rules.
Currently, the law doesn’t allow a single parent with a child born via surrogacy to obtain a parental order, leaving their family legally vulnerable.
The national study, Why Asthma still kills, involved a detailed examination of the circumstances surrounding 195 deaths from asthma in the UK in 2012.
Our Housing team are delighted following a formal tender procurement process to have been appointed to three lots under the new multi-million-pound legal services framework for The Riverside Group.
Necrotising Fasciitis, more commonly known as the ‘flesh-eating disease’, is a significant medical condition that requires urgent treatment.
Many of us who have been following the unfolding Inquest, are not surprised that the Coroner found gross and significant failures on the part of those caring for him.
Transferring out of SHPS will not be suitable for every housing association. So what should housing associations do?
In all the action to remove defective cladding, leaseholders have been the elephant in the room. Whilst social landlords might have adopted a wait and see approach private landlords do not have that luxury.
We welcome the Labour Party’s commitment to doubling the size of the co-operative economy. We wholeheartedly support the ambition to grow this vitally important part of the economy.
To receive invitations to our events, as well as information and articles on legal issues and sector developments that are of interest to you, please sign up to Newsroom.