An employee who was off work for six years, with no prospect of returning, was found not to be “assigned” to a grouping for TUPE purposes and therefore did not transfer (BT Managed Services Ltd v Edwards and anor).

Mr Edwards was off on long term sickness absence with a heart condition.  The business in which he had been working prior to his illness transferred under the TUPE’s service provision change provisions and an issue arose as to whether Mr Edwards transferred too.  The EAT found that in order to be assigned to the grouping, Mr Edwards needed more than a mere administrative or historical connection with the business.  Here, Mr Edwards was found to be permanently unable to return to work, so could have no further involvement with the economic activity performed by the grouping.  As such, he was not assigned to the grouping and did not transfer.

This is an unusual set of facts where it is found that an individual has no prospect of returning to the business.  A long term, but not permanent, absence could lead to a different outcome.