[Thanks to Georgina Bryan, pupil barrister at Littleton Chambers, for preparing this case summary.]
Does a single employee constitute an organised grouping for TUPE purposes where he or she has been instructed by the employer to carry out all of the activities necessary to provide the services for the client?
In the circumstances of this case, yes, held the Court of Appeal in Rynda (UK) Limited v Rhijnsburger (see, also, EAT decision) .
The Respondent had worked as an asset manager for an LLP which provided asset management services to the H20 fund. The Appellant took over provision of these services. At this time the Respondent was responsible for managing the Dutch properties in the fund. She had no other duties and was the only employee who carried out this task.
At paragraph 44 the Court of Appeal summarised the approach to service provision changes set out in the authorities as follows:
- Identify the service the company was providing to the client
- List the activities performed in order to provide that service
- Identify the employees who performed those activities
- Consider whether the company organised those employees into a grouping for the principal purpose of carrying out those activities.
In this case, the Court of Appeal held that the principles had correctly been applied, and that the fourth requirement was met as the LLP had decided that the Respondent should work full time on the Dutch properties with no significant assistance.
The Court distinguished Eddie Stobart Ltd v Moreman, as it was a “positive decision of the employer” rather than “fortuity” that resulted in the Respondent dealing with the properties. Seawell Ltd v Ceva Freight (UK) Ltd was also distinguished, on the basis that the Respondent was not part of a team. Any inconsistency between the authorities will fall to be resolved on another occasion.