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Employment Law

Legal guidance - compliance - software

26 MAY 2015

Rynda (UK) Ltd v Rhijnsburger [2015] EWCA Civ 75; (2015) EMPLR 025

Rynda (UK) Ltd v Rhijnsburger [2015] EWCA Civ 75; (2015) EMPLR 025
13 February 2015

Court of Appeal, Civil Division

Jackson, Kitchin and Floyd LJJ

To determine whether there has been a service provision change from A to B within reg 3(1)(b) of TUPE, one should go through the following steps:

(i) identify the service provided to the client
(ii) list the activities performed to provide that service
(iii) identify the employees of A who ordinarily carried out those activities – ignoring those only temporarily assigned or covering for absent colleagues
(iv) then decide whether A had organised those employees into a grouping the principal purpose of which was to carry out the listed activities
(v) if so, there is a service provision change if those activities cease to be carried out by employer A and thereafter are carried out by employer B.

DJD provided property management services to a group of companies operating in various European countries. R worked for DJD as a team of one to provide those services to properties in Holland. DJD withdrew from the contract and was replaced by Rynda. Rynda dismissed R some months later. R complained that the dismissal was unfair. Rynda argued R only started her employment with them when they took over the contract so she had insufficient continuous employment. R argued that TUPE applied so she could count her period of employment with DJD.

The tribunal, EAT and Court of Appeal, held that TUPE applied. Rynda relied on Eddie Stobart Limited v Moreman, where one group of workers (who happened to be the day shift workers) provided services for a particular client; but there was no organised grouping of employees because that grouping was mere ‘happenstance’ and not as a result of a decision by the employer (thus failing to satisfy (iv) above); whereas here the employer had specifically organised R to carry out those activities.

Secondly, Rynda relied on Seawell Limited v Ceva Freight (UK) Limited, where an individual who spent all his time working for one customer was held not to constitute an organised grouping of employees because there were others in the team working for that client who also carried out other activities. So in Seawell the employees listed according to (iii) above included employees whose principal purpose was other than working for that client; whereas in this case there were no employees other than R who carried out the property management services for properties in Holland.
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