March 31, 2015

TUPE: Single Employee Constituted an Organised Grouping of Employees

In Rynda (UK) Ltd v Rhijnsburger [2015] EWCA Civ 75, the Court of Appeal considered whether a single employee was an “organised grouping of employees” for the purposes of establishing whether there had been a service provision change under TUPE.

The Claimant was initially employed by Drivers Jonas (Drivers), a property management company, to manage properties in the Netherlands and Germany owned by Rynda Capital (RC). After about a year, it was agreed with Drivers that she would work solely on the Dutch properties. She was the only employee in this role. RC subsequently transferred the management function of its entire property portfolio from Drivers to a subsidiary, Rynda UK (RUK). As part of that transfer, the Claimant’s employment with Drivers ended and she was immediately employed by RUK where she continued performing exactly the same role. She was dismissed by RUK eight months later and sought to claim unfair dismissal. As a preliminary point, in order to have sufficient service to bring this claim, she needed to show that a service provision change under TUPE had occurred as this would mean that her prior service with Drivers would be taken into account. One of the elements of the test for establishing if there has been a service provision change is whether immediately before the transfer there was “an organised grouping of employees situated in Great Britain which has as its principal purpose the carrying out of the activities concerned on behalf of the client”. The Court held that this required the employees to be organised through some “deliberate planning and intent”. This condition was met because the Claimant’s dedication to the Dutch properties was due to a “positive decision” of Drivers, rather than “happenstance”. The fact that she had at some prior stage worked on German properties did not change this position.

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