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Long-Term Sick Leave and TUPE - Tribunal Gives Guidance

Workers whose contracts are shifted from one employer to another are protected by law against the consequences of commercial deals over which they have no control. However, the complications involved in such transfers were highlighted by the case of a telecommunications worker who had been on sick leave for five years.

The man worked as part of a close-knit team within a telecommunications company (company A) whose sole purpose was to service an outsource contract. The team, which had its own internal management structure, was acknowledged to be an organised grouping within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).

Although the man had been permanently unfit for work since 2008, he had remained on the team’s books and had continued to be paid by company A. The outsource contract was transferred to another telecommunications company (company B) in 2013 and it was accepted that that amounted to a service provision change and that the team’s employment contracts had transferred to company B.

An issue thus arose as to whether the man’s employment had shifted along with other members of the team notwithstanding his long-term inability to work. An Employment Tribunal answered that question in the negative, with the result that he continued to be employed by company A.

In dismissing company A’s challenge to that decision, the Employment Appeal Tribunal found that, as the man had made no contribution to the economic activity of the team for an extended period, he had not been assigned to that grouping at the time of the transfer. His continued administrative connection to the team was insufficient to amount to an assignment within the meaning of TUPE.