The EAT has found that a long term sick employee could not have been part of an assigned grouping of workers in a TUPE service provision change situation because he was not capable of working, insofar as the employee was not expected to return. The situation might be different if the employee were not effectively permanently out sick.

Judge Serota QC, sitting along ruled that:

"I reject the submission that the ECJ in Botzen recognised that employees who might be permanently unable to work might still be assigned to the entity subject to the service provision change. Permanent inability should be distinguished from temporary inability. I am not able to accept the submission that the Employment Tribunal is bound to consider to what other entities Mr Edwards was assigned if not to the DNO [domestic network outsource]. The identity of an organised grouping et cetera subject to service provision change is partly defined by the work it carries out; so, almost by definition a person who plays no part in the performance of that work cannot be a member of the group and thus is not “assigned” to the grouping."

The judge continued under discussion and conclusions:

"I reject the suggestion that the universal criterion in all cases is to determine the question of whether an employee (not in work at the time of the service provision change) is assigned to a particular grouping is to be found in the answer to the question to which grouping he could be required to work if able to do so. This criterion is useful in cases where an employee is able to return to work at the time of the service provision change or is likely to be able to do so in the foreseeable future, assuming the employee has not been transferred to other work. The principle has no resonance or applicability in a case such as the present where the employee in question is permanently unable to return to work and has and can have no further involvement in the economic activity performed by the grouping and the performance of which is its purpose. There is a clear link, as I have already observed, between the identification of the organised grouping and the question of who is assigned to that grouping. If the grouping is to be defined by reference to performance of a particular economic activity, the absence of any participation in that activity will almost, by definition, exclude persons in the position of the Claimant."
http://www.bailii.org/uk/cases/UKEAT/2015/0241_14_0209.html