Court of Appeal to hear long running TUPE dispute over sick leave rights

News Article

The Court of Appeal has granted permission for a long running employment law dispute to be heard, which will rule on sick leave rights under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).

The case, involving BT Managed Services Ltd (BTMS) v Edwards and another, will now go before the Court of Appeal.

This long running legal battle involves a claimant who worked as an engineer for BT. He had been on sick leave since 2008, as a result of a heart problem. Attempts to find him suitable alternative work within the business had not proved successful and he was in receipt of permanent health insurance (PHI) payments. Although these payments were no longer paid by the insurance firm, his department continued to pay them as an expense.

Problems arose when the department transferred to Ericsson Ltd, as the new company refused to accept that Mr Edwards was assigned to the team at the time of the service provision change.

Both an Employment Tribunal and Appeal found that that Mr Edwards did not transfer to Ericsson under TUPE as he was not “assigned to the organised grouping of resources or employees”.

BTMS appealed again, and Lord Justice Longmore has now agreed that the case is appropriate for a full Court of Appeal hearing.

The judge accepted BTMA’s argument that previous European and domestic case law suggests that it is wrong for Mr Edwards’ transfer to depend on his level of economic activity.

The company reasoned that the test should be whether or not the employee would carry out work for the organised grouping if fit.

Mr Edwards claims that he has been dismissed and it is appropriate for the Court of Appeal to consider the correct respondent in his case.

Charlotte Woolven-Brown, an employment law expert with Palmers, said: “The outcome of this particular case could have significance for other employers who need to deal with a TUPE transfer, where a worker is already on long term sick leave and unlikely to return, but still on the payroll.

“Certainly, the Court of Appeal will provide clarity but, regardless of the outcome, there is a lesson to be learnt here. Both the outgoing and incoming employers need to agree, between each other, who will take responsibility for such employees, in order to eliminate any confusion going forward.”

Palmers offers a full range of employment law advice and support for companies involved with TUPE. For more information, please contact us.