TUPE: Service Provision Changeover

Thanks to Joanna Cowie of SA Law for preparing this case summary

Can a single employee be an 'organised grouping' whose 'principal purpose' is the activity to transfer under a TUPE service provision changeover?

Yes, holds the EAT in Rynda v Rhijnsburger.

The issue before the employment tribunal had been whether the Claimant had sufficient continuity of service to claim unfair dismissal.  That depended upon her establishing an earlier TUPE transfer.  Finding for the Claimant, the tribunal decided that the conditions in regulation 3 of TUPE 2006 had been satisfied and the EAT agreed.

Following a series of transfers, the Claimant's employment transferred to Rynda.  Considering regulation 3, the tribunal held that the Claimant had been assigned to an organised grouping of employees (albeit that she was the sole employee in that grouping), that her 'principal purpose' was to carry out the activities to be transferred 'immediately before the transfer' and that it was not a temporary arrangement.  Citing Seawell Ltd v Ceva Freight UK Ltd and Eddie Stobart Ltd v Moreman, the EAT agreed with the tribunal that the Claimant's assignment to this activity had been a conscious decision of her employer and was not a matter of  "happenstance".

Following the government's recent decision not to remove the service provision change provisions, this case provides clarity.