Labour & European Law Review Weekly Issue 341 16 October 2013
To satisfy the requirements of a service provision change under the Transfer of Undertakings (Protection of Employment) Regulations (TUPE), employees have to show they were “assigned” to an “organised grouping” (among other things). In Rynda (UK) Ltd v Rhijnsburger, the Employment Appeal Tribunal (EAT) held that a single employee who was assigned to work exclusively on certain activities could constitute an “organised grouping”.
Ms Rhijnsburger worked from May to October 2009 on a six month contract with Drivers Jonas Services Company managing premises in the Netherlands for H20 commercial properties. In October she became an associate and took on responsibility for additional German portfolio work. In March 2010 she became ill and it was agreed that her work would be confined to the Dutch portfolio. She was the only member of staff involved in managing it.
On 1 April 2010 her employment transferred under TUPE to Drivers Jonas Deloitte (DJD). When Rynda assumed responsibility for managing the H20 property portfolio in the Netherlands, her employment with DJD ended on 31 December 2010 and she started work with Rynda on 1 January 2011, still managing the Dutch properties. She was dismissed on 22 October.
She brought a claim for unfair dismissal, but as she had worked for less than a year for Rynda, she argued that her previous employment with DJD should be counted, which meant she had to show that there had been a service provision change.
Regulation 3 of the TUPE regulations 2006 states that there is a service provision change when “activities” are no longer carried out by one employer and are carried out in future by another, as long as immediately before the transfer, “there is an organised grouping of employees” whose “principal purpose” is to carry out the activities concerned on behalf of the client.
Regulation 4 states that a service provision change will not terminate the contract of an employee who is “assigned to the organised grouping of resources or employees that is subject to the relevant transfer ...."
The tribunal judge found that that there was a group comprised only of Ms Rhijnsburger and the relevant activities were the management of the Dutch H20 property portfolio.
This was not a coincidence, but rather the outcome of DJD’s conscious decision that, from March 2010, Ms Rhijnsburger was to work exclusively on the Dutch property portfolio. It was the only work that she did and she was the only person who did it.
As she was assigned to the “organised grouping” that carried out that activity, there had been a relevant transfer of her contract of employment on 1 January 2011.
And the EAT agreed. Referring to Ceva Freight (UK) Ltd v Seawell Ltd (LELR 330), it held that the tribunal judge correctly directed herself to the question of whether, prior to the immediate transfer, there was an organised grouping of employees with the "principal purpose" of carrying out the activities concerned. She found as a fact that there was a group comprised only of Ms Rhijnsburger and that the relevant activities were the management of the Dutch H20 property portfolio.
She also directed herself - correctly - to the question of whether her work on the Dutch portfolio had been accidental, coincidental or simply a matter of happenstance, or whether the arrangement between DJD and Ms Rhijnsburger showed that she had actually been “assigned” to this particular work. It held that, on the findings of fact made by the judge, Ms Rhijnsburger had been assigned by DJD to do that specific work.