TUPE arrangement for Long Term Sick Employee

[MrsLeeG]

Can anyone tell me how a TUPE transfer works for a member of staff who has been long term sick, with no likelyhood to comeback to work in the near future? All other staff have been TUPE'd across but not her as yet?
(this is a friend of mine, all her co-workers have been transfered but she has heard nothing)

[factor-fiction]

She should be treated the same as the others I think. Perhaps they feel the required consultation hasn't been possible yet. Or maybe they are planning to dismiss her on capability grounds. It's possible though that if she is no longer receiving pay they have just overlooked her.
Has the whole business ceased to exist or is it just a function that's been outsourced? I'm trying to work out who employs her now.

[buildersmate]

As above.
She should contact her existing employer to ask what is happening. The TUPE process applies to her exactly as others, however the probability of her dismissal on grounds of capability (LT sick consequences) or redundancy (by the new employer, through the rationalisation that inevitably occurs through this process) is significant.

[MrsLeeG]

thanks guys. She has been off sick for over 6 months and receives standard sick pay. The rest of the staff have been TUPE's across to a new company and the company she works for has been put into receivership (or possibly about to). I thought legally they couldnt pay someone off who was on sick leave, but a few rounds of googling tells me they can. Guess she just has to wait till she hears from them.

[Nude_Warthog]

If your friend is/was absent temporarily or if there is a reasonable belief that s/he will return to work (e.g. maternity leave, non-permanent sick leave, temporary lay-off, etc.) she can still be TUPE’d across. (Exactly what constitutes a temporary absence or a reasonable expectation of an employee returning is likely to be difficult to identify and fact specific i.e. each case will need to be examined as an individual case).

It’s only where the absence can be viewed as permanent and there is no expectation that she will be returning to work to participate in the activities that her absence will exclude her from the service provision change transfer. You say that there is no likelihood of a return to work in the near future – in which case she would be excluded from being TUPE’d across.