Colleague on long term sick - TUPE question

Gaberdeen

Good Morning!

I'm asking on behalf of a colleague of mine, who's in an unenviable position at the moment with little to no engagement from our existing employer.

Fast Facts:

Colleague has been with the company ~25 years - been in a senior technical role for about 20 years of that

Colleague has been on long-term sick since February 2025 - it's highly unlikely that he will return to his job but is still on sick pay / company books at time of writing

Company announced a few months ago that they were allowing their service contracts to unwind without bidding to renew them - effectively setting us all up for a TUPE transfer to whomever wins the service contract, estimated to be concluded within the next 6 months.

Colleagues situation seems precarious - he will most probably not be included in the tranche of employees that will end up transferring to a new employer and similarly he cannot see a possible continuation of his job with the old company as they are effectively divesting away from service contracts in their entirety.

My question is what should my colleague be doing at the moment if there's anything pro-active he can do?

I am going to assume that he will be offered either:

1. medical retirement on grounds of ill-health

2. redundancy - given that he will most-probably not be accepted by the new company as a TUPE transfer employee

This might not be the case, though.

I know there is a precedent case-law on this, where a BT service engineer who was on long term sick was assumed to have been transferred to the new employer (EE) - when this went to tribunal when EE stopped paying his sick pay, the tribunal ruled that he was never eligible to TUPE transfer in the first place and the new company had no obligations / liabilities towards the employee.

The situation my colleague finds himself in is remarkably similar so I'm hoping he does not get screwed over in the process.

Any advice or reflections of the above are welcome.

Woodstok2000

The EE ruling was that an employee had to be actively contributing economically to the team that is transferred in order to be part of the TUPE transfer. In this case, as in that case, he's clearly not economically active in the team, so he wouldn't be included in the TUPE transfer, unless theres a specific agreement written to include him.

As he remains with the current employer, his contractual rights still stand so he needs to review those and then speak to his manager to understand what their plans are. Your two suggestions above do seem most likely, but are not necessarily the only way forward and he may have specific entitlements in his contract that need to be met as well.

Is he part of a union?

LeafGreen

I think retirement on grounds of ill health is more related to being able to access pension before normal retirement age and isn't necessarily going to involve the employer giving your friend any additional pay off.
In the circumstances it sounds like redundancy would be the likeliest (and best) outcome, and I guess this could be combined with early retirement pension access if approved by the pension scheme.
There is another possibility which is dismissal on capability grounds which would not involve a pay out.  The employer would need to follow certain processes including trying to make adjustments to make a return to work possible, give notice etc etc.  But if there are redundancies in the offing it would be a slightly cruel employer not to put your friend in scope of that.  I know at my place when there are redundancies there is generally a target of number of people to go, so managers are generally only too happy for people to effectively volunteer.

monkey-fingers

I used to work for a very generous company who paid 6 months full, 6 months half.
At the end of that, you were generally let go if long-term sickness was going to continue (obviously, if adjustments could be made, that was different)

Gaberdeen

Colleague is not part of a union and he is 55 so medical pension probably wouldn't be offered?

Honestly looks like a case of who blinks first.

EnPointe

Gaberdeen said:

Colleague is not part of a union and he is 55 so medical pension probably wouldn't be offered?

Honestly looks like a case of who blinks first.

what's the niormal pension age for the Company pension scheme   ?60 , ?SPA  , somewhere in between ?

how 'senior' are they  actually ?  are they on 'management ' pensions schemes or just  standard autoenrolment ?
 ... health insurance ?  

there is a lot of information still missing here 

LightFlare

If they follow process correctly they could release on grounds of capability if he is long term sick and unlikely to return 

Redundancy is exceedingly unlikely (imo) since why pay to get rid of someone when you can do it for free