Labour & European Law Review Weekly Issue 413 01 April 2015
To satisfy the requirements of a service provision change (SPC) under TUPE, employees have to show they were “assigned” to an “organised grouping” whose “principal purpose” was to carry out the activities concerned on behalf of the client. In Rynda (UK) Ltd v Rhijnsburger, the Court of Appeal confirmed that a single employee can constitute an organised grouping as long as it was not “happenstance” that the employee was carrying out those activities.
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 the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) to Drivers Jonas Deloitte (DJD). After Rynda assumed responsibility for managing the H20 property portfolio in the Netherlands, her employment with DJD ended 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 an SPC under TUPE.
Regulation 3 of TUPE states that there is an SPC 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. According to the decision in Eddie Stobart Ltd v Moreman, the concept of an "organised grouping" also implies an element of “conscious organisation” on the part of employers.
Tribunal and EAT decisions
The tribunal judge found that Ms Rhijnsburger, as the only employee at Drivers Jonas and DJD responsible for managing the H20 properties, constituted an “organised grouping of employees” whose principal purpose was carrying out property management activity on behalf of the client. Although she assumed some responsibility for the H20 German properties, she spent most of her time on the Dutch properties. This was not “happenstance” but something that the employer had consciously organised.
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 as part of a service provision change falling within regulation 3. Her employment therefore transferred from DJD to Rynda on the same date. The EAT upheld that decision.
Court of Appeal decision
The Court of Appeal held that the question in this case was whether it was merely fortuitous that Ms Rhijnsburger was managing the H20 Dutch portfolio, or whether this was something which the employer had deliberately organised. it was clear from the facts that her employer decided which client she should work for “at each stage of the narrative” and had consciously decided that she should be in charge of it. It was irrelevant that she spent some of her time between late 2009 and early 2010 managing some properties in Germany.
Ms Rhijnsburger, although a single employee, therefore constituted an "organised grouping" within the meaning of the regulations.