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TUPE: Single employee can amount to an organised grouping

Meredith Hurst Wednesday, February 25, 2015

In Rynda (UK) Ltd v Rhijnsburger [2015], the Court of Appeal considered whether a single employee could amount to an 'organised grouping of employees' for the purposes of TUPE.

TUPE applies to a 'relevant transfer'.  This can be either, a transfer of a business, or, a service provision change - i.e. outsourcing.  

In Rynda, a property manager was solely responsible for managing a number of Dutch properties for a third-party client.  She worked on her own and not as part of a team.  

The case also touched upon the question of assignment. Assignment to an organised grouping is largely a question of fact, since the TUPE regulations do not define the term.  Considering the percentage of time spent working in the organised grouping to be transferred is useful, but not determinative.  

In Rynda, the fact that the employee had responsibility for properties outside of the Dutch property portfolio did not undermine the finding that she was assigned to it.  The employee spent the majority of her time managing the Dutch properties.  It was not relevant that the scope of the employee's role was under review.

The Court of Appeal laid down a four stage test in cases of this type, holding that an employment tribunal should:

  1. Identify the service provided to the third party client;
  2. Look at the activities that the employees are performing in providing that service;
  3. Identify the employees who ordinarily carry out the service;
  4. Consider whether that employees have as their principal purpose, the carrying out of the listed activities.

Having applied this test to the facts, the employment tribunal had been correct to find that that the employee was assigned to the Dutch property portfolio and that she was doing so without the assistance of anyone else.

This was not a case like Eddie Stobart Ltd v Moreman and others [2012] where groups of employees were assigned to particular client work in a random way, as a consequence of how shift patterns operated.  There was a very clear assignment to the relevant property portfolio such that the employee was dedicated to it.

The upshot of this case is that one individual can amount to an 'organised grouping' for the purposes of TUPE and is a helpful reminder not to overlook the consequences of TUPE, in cases where one might otherwise think it does not apply.

Rynda (UK) Ltd v Rhijnsburger [2015] EWCA Civ 75

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