Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+

Case lawHealth insuranceTUPE

TUPE transfers and long-term sick leave – appeal confirmed

by Personnel Today 14 Jun 2016
by Personnel Today 14 Jun 2016

A senior judge has granted permission for the TUPE case BT Managed Services Ltd v Edwards and another to go to a full Court of Appeal hearing. The case examines whether or not an employee on indefinite sick leave, but retained in employment, transfers under TUPE.

Update (16 August 2016)

Keep track of key employment law cases on appeal Our “Cases on appeal” page highlights that this case settled on 16 August 2016 and will not now proceed to the Court of Appeal.

In a hearing at the Royal Courts of Justice on 14 June, Lord Justice Longmore accepted the application from BT Managed Services (BTMS) for permission to appeal.

The case involves an engineer, Mr Edwards, who worked under an outsourcing contract within BTMS. He worked in a team of engineers maintaining mobile phone networks operated by Orange.

A heart condition meant that Mr Edwards was unable to continue in his job. Attempts to provide him with alternative work were unsuccessful, and he was regarded as permanently incapacitated.

Mr Edwards received payments under a permanent health insurance scheme for a time, and after the insurers’ liability ran out BTMS continued to make payments to him. Mr Edwards remained “on the books” of the network maintenance team.

Five years after Mr Edwards ceased working, a service provision change resulted in the maintenance contract transferring from BTMS to Ericsson.

A legal dispute arose when Ericsson refused to accept that Mr Edwards was assigned to the team at the time of the service provision change.

Key TUPE cases considered

Botzen v Rotterdamsche Droogdok Maatschappij BV
(European Court of Justice)

Fairhurst Ward Abbotts Ltd v Botes Building Ltd and others
(Court of Appeal)

The employment tribunal held that Mr Edwards had not transferred under TUPE. BTMS appealed.

The Employment Appeal Tribunal (EAT) agreed with the first-instance tribunal.

The EAT held that Mr Edwards did not transfer to Ericsson under TUPE as he was not “assigned to the organised grouping of resources or employees”.

The EAT decided that an administrative or historical connection of an employee to the grouping, subject to the service provision change, is not sufficient to constitute an assignment.

There must be some level of economic participation, or prospect of future participation, in the work, according to the EAT.

BTMS appealed again, and on 14 June Lord Justice Longmore considered whether or not the case is appropriate for a full Court of Appeal hearing.

The judge accepted the argument from BTMS that the employment tribunal and EAT’s approach was sufficiently novel to justify the case being heard at a higher level.

BTMS argued 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 argued that the test should be whether or not the employee would carry out work for the organised grouping if fit.

Lord Justice Longmore rejected concerns that the appeal would be dealing with purely theoretical issues. The judge pointed out that Mr Edwards has an employment tribunal claim pending.

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

Who transfers under TUPE?

Line manager briefing: TUPE transfers

How to carry out a due diligence exercise

Webinar: TUPE

XpertHR principal employment law editor Stephen Simpson, who attended the hearing in London, said:

“This case has the potential to be significant for employers faced during a TUPE transfer with an employee on long-term sick leave who is still in employment, but has been off sick for a long time and doesn’t look like ever returning.”

Simpson continues: “Both the outgoing and incoming employer in these circumstances may need to decide who takes responsibility for the employee. If the test is to look at the potential level of economic activity, the employee is much less likely to transfer.”

Sign up to our weekly round-up of HR news and guidance

Receive the Personnel Today Direct e-newsletter every Wednesday

OptOut
This field is for validation purposes and should be left unchanged.

“On the other hand, the employee is much more likely to transfer if the test is: would the employee carry out work if fit?”

Lord Justice Longmore decided that a one-day Court of Appeal hearing should be scheduled. He agreed that two Court of Appeal judges would be sufficient to hear the appeal, but stressed that one of them should be an employment law specialist.

Personnel Today

Personnel Today articles are written by an expert team of award-winning journalists who have been covering HR and L&D for many years. Some of our content is attributed to "Personnel Today" for a number of reasons, including: when numerous authors are associated with writing or editing a piece; or when the author is unknown (particularly for older articles).

previous post
Practical ways to tackle diversity without positive action
next post
HR supplier partnership winners: empowering managers and helping HR

1 comment

Employment law stories in the news – 13.06.2016 to 19.06.2016 | Redmans Solicitors 20 Jun 2016 - 9:07 am

[…] TUPE transfers and long-term sick leave: appeal confirmed – A senior judge has granted permission for the TUPE case BT Managed Services Ltd v Edwards and another to go to a full Court of Appeal hearing. The case examines whether or not an employee on indefinite sick leave, but retained in employment, transfers under TUPE (Personnel Today) […]

Comments are closed.

You may also like

Consultation launched after Supreme Court ‘sex’ ruling

20 May 2025

EHRC bows to pressure and extends gender consultation

15 May 2025

Data highlights positive link between group income support...

14 May 2025

‘Unacceptable to question integrity’ of Supreme Court judgment

2 May 2025

Trans ex-judge to appeal Supreme Court biological sex...

29 Apr 2025

EHRC: Interim update on single-sex spaces draws criticism

28 Apr 2025

‘Healthy work’ about much more than access to...

28 Apr 2025

Half a million more now have access to...

23 Apr 2025

Opposition to Supreme Court sex ruling is ‘wishful...

22 Apr 2025

Supreme Court transgender ruling: ‘common sense’ or ‘incredibly...

17 Apr 2025

  • 2025 Employee Communications Report PROMOTED | HR and leadership...Read more
  • The Majority of Employees Have Their Eyes on Their Next Move PROMOTED | A staggering 65%...Read more
  • Prioritising performance management: Strategies for success (webinar) WEBINAR | In today’s fast-paced...Read more
  • Self-Leadership: The Key to Successful Organisations PROMOTED | Eletive is helping businesses...Read more
  • Retaining Female Talent: Four Ways to Reduce Workplace Drop Out PROMOTED | International Women’s Day...Read more

Personnel Today Jobs
 

Search Jobs

PERSONNEL TODAY

About us
Contact us
Browse all HR topics
Email newsletters
Content feeds
Cookies policy
Privacy policy
Terms and conditions

JOBS

Personnel Today Jobs
Post a job
Why advertise with us?

EVENTS & PRODUCTS

The Personnel Today Awards
The RAD Awards
Employee Benefits
Forum for Expatriate Management
OHW+
Whatmedia

ADVERTISING & PR

Advertising opportunities
Features list 2025

  • Facebook
  • Twitter
  • Instagram
  • Linkedin


© 2011 - 2025 DVV Media International Ltd

Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+