Are you effectively managing your employee’s long-term absence?
Emily Eccles, Solicitor Commercial and Employment at Mogers Drewett, explains the importance of employers managing long-term employee absence when it occurs.
In the case of long-term absence, employees should give serious consideration as to whether there are other ways for the employee to return to work, even if it is in a different capacity. Any decision that potentially rules out an employee returning to work could have adverse consequences for the company should a Transfer of Undertakings (Protection of Employment) (‘TUPE’) situation arise.
This was illustrated recently in the Employment Appeals Tribunal decision of BT Managed Services Ltd v Edwards. In this case, the employee had a long-term absence of five years due to illness and there was no indication of him returning to work. The employee had remained ‘on the books’ to allow him to receive his permanent health insurance benefits. Once these had been exhausted the company continued to pay him discretionary sick pay. The company then carried out a tender process by which the division transferred to Ericsson, who refused to accept the employee on the grounds of his long-term absence.
The TUPE Regulations apply where there is a ‘relevant transfer’, and a TUPE situation can arise as a result of a business transfer and/or by means of a service provision change. The regulations are in place to transfer the employment of those employees who are subject to a ‘relevant transfer’ and are assigned to an ‘organised grouping’ on their same terms and conditions to ensure they are not disadvantaged as a result of the transfer of a business or an outsourcing of services.
Although other employees transferred under TUPE, Ericsson argued, and the tribunal concluded, that as the employee had no prospect of returning to work, he was not assigned to the organised grouping, and as a result he would not transfer under the TUPE regulations. His link to the division which transferred across was historic and purely for administration purposes and this wasn’t sufficient for him to be assigned for TUPE purposes.
The case went to the Employment Appeals Tribunal and the appeal was dismissed. They held that for an employee to be assigned to an organised grouping they will “generally require some level of participation or, in the case of a temporary absence, an expectation of future participation in carrying out the activities”.
It was on this basis that the Tribunal distinguished the case from other scenarios where employees may be absent for periods of time, such as maternity leave, long-term sick leave, or temporary cessation of activity on the basis that the absence is likely to be temporary. The company’s conscious decision to keep Mr Edwards permanently absent from his job meant that effectively he was only connected with the group to allow him to receive his permanent health benefits and this was not sufficient for him to transfer to the new employer.
For further information or advice on this subject please call 01935 813691