Clients often ask our expertise and guidance where they’re considering if TUPE applies where they have won a new contract to provide a service. A useful area to challenge if TUPE applies is whether there is an organised grouping of employees and identifying who is actually in that grouping, but a recent case has highlighted that an employer cannot assume that, where there is only one employee, there cannot be an organised grouping of employees.
A question put to the Court of Appeal was: 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?
The answer: - in the circumstances of this case, it was decided..Yes. In Rynda (UK) Limited v Rhijnsburger, the employee had worked as an asset manager for an LLP which provided asset management services to the H20 fund. The company took over provision of these services and at this time, the employee 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.
In a helpful reminder to employers, the Court of Appeal summarised the approach to adopt when a new contract has been won and there is a service provision change, 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; and
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 the employee should work full-time on the Dutch properties with no significant assistance.