Rynda (UK) Ltd v Rhijnsburger

For a service provision change under the Transfer of Undertakings (Protection of Employment) Regulations 2006, the court should identify the service, the activities performed, the employees ordinarily performing them, and whether the employer organised them into a grouping whose principal purpose was those activities. A single employee may constitute an organised grouping. The decisive feature is deliberate employer organisation by reference to the client, rather than work patterns which happen to benefit one client. Deliberate assignment of one employee to perform all relevant activities can satisfy the requirement. The appeal was dismissed.

The claimant managed properties in the Netherlands first for Drivers Jonas LLP and then for Drivers Jonas Deloitte LLP. When Rynda (UK) Ltd took over the management function on 1 January 2011, the claimant moved to Rynda and continued doing the same work. After her dismissal, she claimed unfair dismissal on the basis that her employment had transferred under TUPE.

The Employment Tribunal held that a relevant transfer had occurred under regulations 3 and 4. The Employment Appeal Tribunal dismissed Rynda’s appeal in [2013] UKEAT 0570_12_0909. The central issue before the Court of Appeal was whether a single employee constituted an organised grouping of employees for the purposes of the service provision change provisions.

Lord Justice Jackson delivered the leading judgment. Lord Justices Kitchin and Floyd agreed. The appeal was dismissed.

1. Applicable inquiry. The court identified a four-stage approach under the Transfer of Undertakings (Protection of Employment) Regulations 2006: identify the service provided; list the activities performed to provide it; identify the employees who ordinarily performed those activities; and consider whether the employer organised them into a grouping whose principal purpose was carrying out those activities.
2. Single employee. Regulation 2(1) permits a single employee to constitute an organised grouping. The requirement is satisfied where the employer deliberately assigns or instructs that employee to perform all activities necessary to provide the relevant service for the client. It is not enough that external circumstances or working patterns happen to result in most of an employee’s work benefiting one client.
3. Application. The claimant performed all activities connected with the Dutch properties and had no significant assistance. Drivers Jonas and subsequently Drivers Jonas Deloitte deliberately decided that she alone should manage those properties. Her earlier, lesser involvement with German properties did not defeat the conclusion. The case was distinguished from Eddie Stobart Ltd v Moreman [2012] IRLR 356, where the arrangement was fortuitous, and from Seawell Ltd v Ceva Freight (UK) Ltd [2013] CSIH 59; [2013] IRLR 726, where the employee formed part of a wider team serving other clients.
4. Accordingly, the claimant was an organised grouping for regulation 3(3)(a)(i), a service provision change occurred under regulation 3(1)(b)(ii), and her employment transferred under regulation 4(1).

• Court of Appeal (Civil Division) In [2015] EWCA Civ 75, the appeal from the Employment Appeal Tribunal was dismissed.
• Employment Appeal Tribunal In [2013] UKEAT 0570_12_0909, the appeal from the Employment Tribunal was dismissed.
• Employment Tribunal The tribunal held on 24 May 2012 that the claimant’s employment had transferred under TUPE.