BT Managed Services Ltd v Edwards

Whether an employee is assigned to an organised grouping for the purposes of a service provision change is a question of fact, determined from all the circumstances. Administrative, historic or accounting connections are relevant but cannot alone establish assignment. Temporary absence may leave an employee assigned where there is an expectation of future participation in the grouping’s activities. The position is different where the employee is permanently unable to work and has no present or future involvement in the economic activity pursued by the grouping. In that situation, the question where the employee would have worked if able to do so has no practical application.

Mr Edwards had been employed in BT Managed Services Ltd’s domestic network outsource team. He had been permanently unfit for work for several years, remained on the team’s books, and continued to have administrative and financial connections with it. The DNO contract later transferred to Ericsson in a conceded service provision change.

The Employment Tribunal held that Mr Edwards was no longer assigned to the transferred grouping because he made no contribution to its economic activity and was not expected to return to work. BTMS appealed, arguing that his contractual and organisational attachment, and the work he would have performed if fit, necessarily established assignment. The central issue was whether permanent inability to work prevented assignment despite continuing administrative links.

1. Appeal dismissed. The Employment Tribunal had directed itself correctly and reached a conclusion open to it on the evidence.
2. Under regulation 4 of the Transfer of Undertakings (Protection of Employment) Regulations 2006, assignment is a factual question requiring an assessment of all relevant circumstances. No individual factor, including contractual terms, reporting arrangements, cost allocation or administrative attachment, is necessarily determinative.
3. There must generally be more than a merely administrative or historical connection with the organised grouping. Assignment ordinarily requires some participation in the relevant activities or, where the absence is temporary, an expectation of future participation. The identity and purpose of the organised grouping under regulation 3 are closely connected with the question of assignment.
4. The principle in Fairhurst Ward Abbots Ltd v Botes Building Ltd—that temporary sickness absence does not itself sever assignment and that the relevant question may be where the employee would have worked if fit—remains useful in cases of temporary absence. It is not a universal criterion applicable to an employee who is permanently unable to return to work.
5. Mr Edwards’ continuing OUC, payment arrangements, managerial contact and inclusion on the team’s books were insufficient. Because he could never participate in the DNO team’s economic activity, he was not assigned to it. It was unnecessary to determine to which other part of BTMS he was assigned.

• Employment Appeal Tribunal: dismissed BT Managed Services Ltd’s appeal from the Employment Tribunal’s decision that Mr Edwards was not assigned to the transferred grouping.