The employment of a person on long term sickness absence may not pass to the new employer under a TUPE transfer.
In the case of BT Managed Services v Edwards, the EAT stressed that an employee must be “assigned” to the transferring part of the business. They must either be actively participating in it or only be absent on a temporary basis. Here the employee, Mr Edwards, was not expected to return to work. He had been absent for some six years. He was only kept “on the books” of the original employer so that he could benefit from its permanent health insurance scheme.
The EAT’s decision shows a pragmatic approach to the TUPE Regulations but employers must be careful. Mr Edwards had been absent for several years. He had a chronic medical condition and would not return to work. Should a decision be made that an employee on long term sickness, perhaps of many months, will not be included in a transfer, this could be a breach of both TUPE and the Equality Act. It has to be clear that they will not return to work. Make sure you have this question addressed in a medical report.