A single employee can be "an organised grouping of employees" for TUPE purposes, Court of Appeal confirms

The Court of Appeal has given some useful guidance on when employees transfer under TUPE in a service provision change scenario:  Rynda (UK) Ltd v Rhijnsburger [2015] EWCA Civ 75. This was a case concerning the transfer of a single employee.

Ms Rhijnsburger was initially employed by Drivers Jonas and had sole responsibility of managing a group of Dutch properties on behalf of her client, the Rynda Group. She had previously managed a group of German properties but ceased to do so and had exclusive management of the Dutch properties.  Ms Rhijnsburger was effectively a one-person department.

Drivers Jonas was acquired by Deloitte LLP in April 2010 to become Drivers Jonas Deloitte LLP (DJD). Ms Rhijnsburger transferred to DJD but shortly after the transfer, DJD decided to withdraw from management of the Dutch properties and Ms Rhijnsburger’s employment ended on 31 December 2010. Before Ms Rhijnsburger left DJD, Rynda had arranged for one of its subsidiary companies, Rynda (UK) Ltd (“RUKL”)to take over its property management function from DJD. Ms Rhijnsburger subsequently joined RUKL on 1 January 2011, carrying out exactly the same duties as before.

Unfortunately, issues arose between Ms Rhijnsburger and RUKL and eight months later, she was dismissed.  In order for Ms Rhijnsburger to show that she had sufficient length of service to bring an unfair dismissal claim against RUKL, she had to show that she had TUPE transferred from DJD to RUKL.

RUKL argued that Ms Rhijnsburger could not constitute “an organised grouping of  employees” for the purposes of TUPE. The Court of Appeal disagreed and found that there had been a service provision change under TUPE and accordingly Ms Rhijnsburger had transferred from DJD to RUKL. In reaching its decision, the Court of Appeal directed tribunals to apply a four stage test in cases of this type. The test will act as useful guidance for employers engaged in potential TUPE transfers:

• Identify the service which the transferor was providing to the client.
• List the activities which the staff of the transferor performed in order to provide that service.
• Identify the employee or employees of the transferor who ordinarily carried out those activities.
• Consider whether the transferor organised that employee or those employees into a “grouping” for the principal purpose of carrying out those activities.

This case is quite important as it is a rare Court of Appeal case on TUPE and service provision change and approves the approach in the leading cases of Eddie Stobart Ltd v Moreman and others [2012] IRLR 356 in the EAT and the Court of Session in Scotland in Ceva Freight (UK) Ltd v Seawell Ltd [2013] CSIH 59. These cases emphasise that, for TUPE to apply,  it is vital to be able to show that the employee is organised by reference to the client’s requirements i.e. there must be conscious organisation by the employer. In the case of Ms Rhijnsburger, there had been a conscious decision to allocate her to the Dutch properties, it was not a matter of chance.