Labour & European Law Review Weekly Issue 440 07 October 2015
The TUPE regulations state that the contract of anyone “assigned to the organised grouping of resources or employees” being transferred will not be terminated by the transfer. In BT Managed Services Ltd v Edwards and anor, the Employment Appeal Tribunal (EAT) held that to be “assigned” to the grouping, the employee needed to actually participate in carrying-out the activities on behalf of the client either in the present or the future.
Mr Edwards, a field operations engineer for BT Managed Services (BTMS), went on sick leave in May 2006 because of a serious cardiac condition. Although various attempts were made to provide him with alternative, less strenuous work, he went on sick leave again in January 2008. BTMS decided in 2010 that he could remain permanently absent in order to continue to receive private health insurance (PHI) payments. When that ran out, BTMS made the payments directly to him.
In June 2013 his work team transferred to Ericsson. It accepted that there had been a service provision change under TUPE but argued that Mr Edwards had not transferred over on the ground that he had not been “assigned” to the team at the time of the transfer because of his long-term absence.
Regulation 4(1) states that the contract of anyone employed by the transferor and “assigned to the organised grouping of resources or employees” being transferred will not be terminated by the transfer.
The tribunal accepted that there was an organised grouping of resources with the objective of pursuing an economic activity and/or an organised grouping of employees whose principal purpose was carrying-out field operations activities.
However, it held that Mr Edwards ceased to be assigned to that grouping of resources and/or employees in 2010 when BTMS made the decision to allow Mr Edward to remain absent so that he could continue to receive PHI payments.
The EAT held that something more than a mere administrative or historical connection was required for an employee to be assigned to a particular grouping within the meaning of regulation 4. Instead they needed to actually participate in carrying-out the relevant activities on behalf of the client; or in the case of someone who was temporarily absent, to participate in the future.
Mr Edwards’ connection with the grouping in this case was a very limited administrative connection that was not based on his present or future participation in economic activity. Having an administrative connection was a factor to be taken into account, but could not be decisive in deciding whether or not he was assigned to the grouping at the time of the service provision change.
As the identity of an organised grouping subject to a service provision change is partly defined by the work it carries out, a person who plays no part in the performance of that work cannot be a member of the group and thus is not “assigned” to the grouping.
Finally, it held that the question of whether an employee not in work at the time of the service provision change is assigned to a particular grouping could not be answered by looking at which grouping he would work with if he were able to do so. This criterion was only useful in cases where the employee was able to return to work at the time of the service provision change or was likely to do so in the foreseeable future. It had no relevance to the present case as Mr Edwards was permanently unable to return to work and could have no further involvement in the economic activity performed by the grouping.