Rynda (UK) Ltd v Rhijnsburger (Transfer of Undertakings : Service Provision Change)

For a service provision change under Transfer of Undertakings (Protection of Employment) Regulations 2006, the tribunal must identify the activities and assess, immediately before the change, whether the employer had consciously organised an employee or team with the principal purpose of carrying them out. A single employee can be the organised grouping.

The employer’s objectively assessed intention is central, but the practical reality of the work is relevant evidence. An arrangement that has endured and is not short-term, finite or subject to review is not temporary merely because it was initially capable of later review. A deliberate allocation of one employee exclusively to the relevant activities may establish both principal purpose and assignment.

The Claimant was dismissed by Rynda (UK) Ltd after working there from 1 January to 22 October 2011. She could pursue unfair dismissal only if her earlier employment with Drivers Jonas Deloitte transferred to Rynda under TUPE.

Employment Judge Grewal held, after a pre-hearing review, that there had been a service provision change. Immediately before the change, the Claimant alone managed the Dutch H20 property portfolio under an arrangement made in March 2010. The Employment Tribunal therefore had jurisdiction to determine her unfair dismissal complaint.

Rynda appealed on nine grounds. It challenged the findings on principal purpose, temporary assignment, assignment, perversity and the identity of the Claimant’s former employer.

1. Appeal dismissed. The Employment Judge correctly held that the Claimant’s contract transferred under a service provision change and that she had the continuity of employment required for her unfair dismissal claim.
2. Under Regulation 3, the proper starting point is the relevant activities. The tribunal must then consider how the contractor arranged for their performance. The requirement for an organised grouping having the activities as its principal purpose requires conscious organisation by the employer, akin to a team. It may comprise one employee.
3. The Judge correctly focused on the position immediately before the alleged transfer. She found that, from March 2010, the former employer deliberately arranged for the Claimant to manage only the Dutch portfolio and for no other employee to do so. This was not happenstance. Those findings entitled the Judge to conclude that the Claimant formed an organised grouping whose principal purpose was the relevant property-management activity.
4. The employer’s objectively assessed intentions determine principal purpose, but the tribunal may consider the actuality of the work performed. Time spent on the work and other practical circumstances were relevant evidence. The Judge did not apply an impermissible arithmetical test.
5. The arrangement was not temporary. It had continued for about eight months and, because of the business transfers and separation of the Dutch and German functions, had become irreversible. It was neither short-term nor finite nor subject to review in the relevant sense. The findings also justified the conclusion that the Claimant was assigned to the grouping.
6. The perversity challenge did not approach the necessary high threshold. Any possible error in describing part of the evidence concerning the former employer as hearsay was immaterial to the overall finding.

• Employment Appeal Tribunal: Rynda’s appeal was dismissed. The Employment Judge’s jurisdictional ruling was upheld.
• Employment Tribunal, London Central: Following a pre-hearing review on 22 March 2012, Employment Judge Grewal gave judgment on 22 May 2012 that the Claimant had sufficient continuity of employment to pursue unfair dismissal.