TUPE - One Employee Was an 'Organised Grouping'

A service provision change under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) takes place when, immediately before the change, there is an 'organised grouping of employees' that has as its principal purpose the carrying out of the relevant activities on behalf of the client – TUPE Regulation 3(3)(a)(i).

In Eddie Stobart Limited v Moreman and Others, the Employment Appeal Tribunal (EAT) held that to qualify for protection under TUPE, the employees carrying out the relevant activities before the change must be organised in some sense by reference to the requirements of the particular client. It will not be a relevant transfer where a group of employees happen to find themselves working on tasks for that client because of shift patterns and working practices, but without any deliberate planning or intent.

In a further case on this issue (Rynda (UK) Limited v Rhijnsburger), the Court of Appeal has ruled that a property manager who had worked for an international firm of estate agents was capable of constituting an organised grouping of employees within the meaning of the Regulation.

Ms Rhijnsburger began working for Rynda (UK) Limited at the beginning of 2011. Prior to that, she had been employed by Drivers Jonas Services Company since May 2009. Initially, she had worked under a six-month fixed-term contract managing a portfolio of commercial properties in the Netherlands for Rynda UK's parent company. From October 2009, she was offered a permanent role, working on the Dutch portfolio and also taking on some responsibility for managing the portfolio of German properties. From late March 2010, after a short absence from work owing to illness, it was agreed that she would no longer assist with the German portfolio. She was then solely responsible for managing the Dutch properties and had no other duties. Following a merger in April 2010, the company was no longer involved in managing the German properties.

A decision was subsequently made to withdraw from managing the portfolio of properties altogether and the function was transferred to Rynda UK at the end of 2010. Ms Rhijnsburger continued doing precisely the same job as before, managing the properties in the Netherlands.

On 2 September 2011 Ms Rhijnsburger lost her job after falling out with her new bosses and argued before the ET that her dismissal was unfair.

In those circumstances, a preliminary issue arose as to whether her employment had automatically transferred to her new employer. If not, she did not have sufficient continuity of service to bring a claim. That issue, in turn, hinged on whether she was capable of constituting an 'organised grouping of employees' within the meaning of TUPE.

The ET, and subsequently the EAT, held that she was. In dismissing the employer's appeal, the Court of Appeal found that, notwithstanding that she was just one person, the earlier rulings contained no error of law. Immediately prior to the transfer, Ms Rhijnsburger comprised a group of only one person working exclusively on the Dutch property portfolio. The circumstances were different from those in the Eddie Stobart case because the situation arose as a result of a positive decision on the part of Ms Rhijnsburger's employer and was not a matter of 'happenstance'.

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