The issue in this case is whether an employee on long term sickness absence is assigned to the organised grouping of employees who transferred under a Reg 3(1)(b) Service Provision Change transfer.
The employee, who was employed by BTMS on a domestic network outsource (DNO) contract, was permanently unfit for work with a long term illness. He last worked in 2008. The reason he remained employed was because of a contractual entitlement to ill health benefit payments under a phi policy. This had initially been an insured liability but at the date of the proceedings the period of insurance had been exhausted and the payments were made directly by BTMS (it is unclear from the report whether this was on contractual or ex gratia payment basis). The employee was employed in a part of the business which transferred to Ericsson. The Tribunal found there was no prospect of his returning to work. BTMS sought to argue that he should have transferred to Ericsson.
The ET Judgment
The ET focussed on whether the employees was ‘assigned’ to the organised grouping that transferred. It held that the Claimant had ceased as a matter of fact to be assigned in 2010 and therefore was not assigned as at the date of the transfer on the 1 June 2013. Although his post had not been backfilled and the costs of his employment were accounted for under the DNO contract, he had only remained as part of the DNO team for administrative purposes concerned with the administering of the phi policy.
The EAT Judgment
BTMS appealed on the basis that it was not a requirement that in order be assigned the employee had to contribute to the economic activities of the grouping that was transferred. It was argued that the proper approach was to ask what part of the undertaking would the employee be required to work if he was not absent which, in this case, was the part which transferred. It was also argued that if the employee was not assigned to the DNO contract the ET was required to ask what other part of the organisation he was assigned to.
The EAT dismissed the appeal. It held:
(1) That the question of which entity an employee would be required to work in if he returned to work is not a universal criterion applicable in all cases to determine assignment. This criterion is useful in cases where the employee is likely to be able to return to work in the foreseeable future but not in cases where he is not.
(2) There is a clear link between the identification of the organised grouping and the question of who is assigned to that grouping. If the grouping is defined by reference to a particular economic activity, the absence of any participation in that activity will almost, by definition, exclude persons in the position of the Claimant.