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Employment Law Case Update - October 2015

Burnetts' employment law & HR team provides a summary of the latest employment law cases including TUPE and sickness absence and investigations.

TUPE and Sickness Absence

Do employees who are off work due to a long term ill health condition transfer in a TUPE situation? Possibly not said the Employment Appeal Tribunal (the EAT) in the case of BT Managed Services Ltd v Edwards.

Mr Edwards had been a field operations engineer for Orange. In 2006 he was diagnosed with a serious heart condition. After significant periods of sickness absence, an application for Permanent Health Insurance payments was made. When that application was successful, one of Mr Edwards’ managers decided that Mr Edwards should be kept permanently absent so as not to jeopardise those payments in any way. At that time, the decision seemed sensible because there was no indication, in any of the medical evidence, that Mr Edwards’ health would ever improve to the extent that he would be able to return to full duties.

Over the course of time, the team within which Mr Edwards had worked was transferred from one organisation to another. No one ever raised any issues about Mr Edwards until 2013 when the team was transferred from BT Managed Services to Ericsson. At that point, Ericsson refused to take Mr Edwards because they felt that he could not be said to be assigned to the service immediately before the transfer.

The employment tribunal agreed so BT appealed.

Unfortunately for BT, the EAT dismissed that appeal and agreed with Ericsson that Mr Edwards was not eligible to transfer.

The EAT held that to be eligible to transfer under TUPE an employee had to be participating in some way in the organised grouping. Even if that weren’t the case immediately before the transfer, the EAT felt that there should be some expectation that the employee would be able to participate in the activities of the group (and the employer) within a short period of time.

Using this test, the EAT was able to draw a distinction between those who are permanently incapacitated such as Mr Edwards, who are kept "on the books" for administrative or payment reasons only, and those whose absence is genuinely temporary such as someone on maternity leave or recovering from a short term illness.

The EAT specifically noted that "mere administrative connection" to a team is not enough. The employee must be actively engaged in the services which the group is performing. The lack of any participation in the activities, without any suggestion of a return to that participation, was fatal to the case.

Employers looking at a TUPE transfer should take note. If the due diligence reveals employees who are not actually at work, advice should be taken as to whether those employees are eligible to transfer.

Anyone with any questions about the impact of this case should contact Natalie Ruane at Burnetts Solicitors on 01228 552222.

What help can you have during an investigation?

In the interesting case of Ramphal v Department for Transport the key question was whether it was acceptable for the person chairing the disciplinary hearing to seek advice from others.

Mr Ramphal was employed by the Department for Transport (DFT) as an Aviation Security Compliance Inspector. He travelled a lot and was entitled to claim expenses and a subsistence allowance. In June 2012, the expenses claims that Mr Ramphal was making came under suspicion and an investigation began. Mr Goodchild was appointed by the DFT to conduct that investigation and to decide what the outcome should be.

Mr Goodchild hadn’t done anything like this before so he met with the DFT’s HR team to learn from them about the DFT’s standard practices. After the disciplinary hearing, Mr Goodchild also sent the HR team a draft copy of his report and asked for their input. In his draft, Mr Goodchild had noted that the sanction should be a final written warning because he felt that the errors in the expenses claims were not deliberate. However, after 6 months of discussion between Mr Goodchild and the HR team about the report and his findings, Mr Ramphal was dismissed for gross misconduct.

Mr Ramphal brought a claim for unfair dismissal which was rejected at an Employment Tribunal. Mr Ramphal appealed on the basis that the employment judge hadn’t given due consideration to the influence of the HR team.

The EAT agreed finding that there was evidence to support "an inference of improper influence" from the HR team. The EAT felt that there was a requirement under UK employment law that the report of an Investigating Officer in a disciplinary situation must be the product of his or her own investigations. As such, the dramatic change in Mr Goodchild’s views after the intervention of the DFT’s HR team should have been treated with great caution.

Although the EAT stressed that an Investigating Officer is entitled to call for advice from HR, the EAT made it clear that the advice given should focus on questions of law, procedure and process. The EAT stressed that any advice given as to guilt or sanction, which was not about consistency, could severely undermine the credibility of the process.

This case is useful in clarifying the extent to which people can help an investigating officer. Employers with concerns about how processes are managed within their organisation should contact Natalie Ruane at Burnetts Solicitors on 01228 552222.

About the author

Natalie Ruane profile photo

Natalie Ruane

Natalie is a Partner and leads the Employment Law & HR team and specialises in education.

Published: Thursday 1st October 2015
Categorised: Employment

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