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Court of Appeal confirms that a single employee can be an 'organised grouping' for the purposes of a TUPE service provision change.
Mrs Rhijnsburger (the Claimant) was employed by Drivers Jonas LLP and then by Drivers Jonas Deloitte LLP (DJD) as a commercial property manager. The Claimant's principal role was to manage a large portfolio of properties in the Netherlands called the H20 properties. However, between October 2009 and early March 2010, when the Claimant was employed by Drivers Jonas LLP, she also spent a small portion of her time managing the H20 properties in Germany.
The H20 properties were owned by the Rynda Group and on 31 December 2010 when DJD's contract to manage the H20 properties came to an end, so did the Claimant's employment.
On 1 January 2011, one of Rynda Group's subsidiaries, Rynda (UK) Ltd (Rynda) took over the contract and the Claimant became employed by Rynda where she continued to manage the H20 properties in the Netherlands.
In October 2011, the Claimant was dismissed by Rynda and brought a claim for unfair dismissal. In order for the Claimant to have sufficient continuity of service to bring the claim, she needed to establish that there had been a service provision change under TUPE from DJD to Rynda. The Claimant therefore needed to show that she was an 'organised group' of employee(s) which had as its 'principal purpose' the management of the H20 properties in the Netherlands.
The Employment Tribunal (ET) and the Employment Appeal Tribunal (EAT) both held that there had been a service provision change under TUPE. The Claimant was an organised group of employee(s) that had as its principal purpose the management of the H20 properties in the Netherlands.
DJD and Rynda had both organised their employees so that the Claimant's principal purpose was to carry out management of the H20 properties in the Netherlands - it was the only work that she did and she was the only person who did it. The fact that the Claimant had for a short period of time also managed the H20 properties in Germany, did not prevent her principal purpose from being management of the H20 properties in the Netherlands.
Rynda appealed to the Court of Appeal who dismissed the appeal and agreed with the reasoning of the ET and EAT.
An employer faced with a potential TUPE situation should consider carefully the roles of its employees and remember that a single employee can constitute an 'organised group' of employees for the purposes of a service provision change under TUPE. This will particularly be so where an employer has consciously decided to allocate that employee to a particular task, thereby forming the employee's principal purpose'. The fact that an employee has also carried out a separate task for a short period of time will not of itself prevent the employee from meeting the 'principal purpose' test.