The EAT has held in BT Managed Services Ltd -v- Edwards and another 2015 that an employee who was on long-term sick leave and was not expected ever to return to work was not ‘assigned’ to an organised grouping of employees for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).

Mr Edwards was signed off sick in January 2008 with a cardiac condition, and there was no prospect of his ever returning to work. A service provision change took place in June 2013, and the team he previously worked for was transferred to a new employer. The Employment Tribunal held that Mr Edwards’ employment had not transferred with the others.

The EAT agreed with the Tribunal. Where there was no prospect of the employee ever returning to work, it didn’t matter that, if he had been able to work, he would have been assigned to the grouping that transferred. The fact was that he could not be said to be assigned to the grouping in any real sense; it was an historical link only.