In BT Managed Services Limited –v- Edwards the EAT had to decide whether an Employee who was permanently off sick could be considered to be assigned to an organised grouping of employees under a TUPE transfer. Mr Edwards had been off work for a period exceeding 5 years, during which time he had received PHI benefits and then discretionary sick pay. He had continued to remain on the books of the Respondent. The particular unit that he was employed in was transferred from the Respondent company to Ericsson. Mr Edwards argued that he should have transferred to Ericsson under the TUPE Regulations. The Employment Tribunal disagreed as did the EAT.
The EAT held that in order for Mr Edwards to have been assigned to the organised grouping Mr Edwards would have generally been required to have “some level of participation, in the case of temporary absence, an expectation of future participation in carrying out the relevant activities on behalf of the client”. They differentiated between permanent capability and someone who would be on maternity leave or long term sickness absence where the absence would be on a temporary basis. In this case it was held that there was only an administrative connection. Therefore the employee was not assigned to the grouping in question.