In BT Managed Services Ltd v Edwards and another, Mr Edwards worked in a particular division of BT which was transferred to Ericsson in 2013. It was accepted that this was a TUPE transfer because it amounted to a service provision change. This had the result that anyone assigned to the organised grouping of employees who were transferring, had their employment transfer to Ericsson.
At the time of the transfer, Mr Edwards was off on long-term sick leave and, more importantly, the company had taken the decision a few years earlier to keep him permanently on sick leave as he had no prospect of returning to work. He continued to be employed however, for the purposes of receiving payments under the permanent health insurance scheme. BT argued that Mr Edwards had transferred, however, Ericsson took the view that as he was on long-term sick leave he was not assigned to the organised grouping of employees. The Employment Tribunal agreed with Ericsson and BT appealed.
The EAT refused the appeal and found that in order to be assigned to an organised grouping under TUPE the employee must participate in the activities which the organised grouping carry out or, if absent, there must be an expectation that they will return to carry out these activities. It was found that Mr Edwards' connection with the organised grouping was simply administrative or historical and that this was not sufficient to be assigned to the grouping.
It is important to note that this decision was fact-specific and it was significant that BT had taken the decision that Mr Edwards would permanently be on long-term sick leave. The position would of course be different if an employee was only temporarily absent.