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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Rynda (UK) Ltd v Rhijnsburger  EWCA Civ 75 (13 February 2015)
Cite as:  IRLR 394,  ICR 1300,  EWCA Civ 75
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ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
UKEAT057012LA,  UKEAT 0570_12_0909
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE KITCHIN
LORD JUSTICE FLOYD
| RYNDA (UK) LIMITED
|- and -
|MS AILIEN RHIJNSBURGER
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Aidan Briggs (instructed by Lyons Davidson Solicitors) for the Respondent
Hearing date: 22nd January 2015
Crown Copyright ©
Lord Justice Jackson:
|Part 1. Introduction||Paragraphs 2 to 4|
|Part 2. The facts||Paragraphs 5 to 17|
|Part 3. The present proceedings||Paragraphs 18 to 24|
|Part 4. The appeal to the Court of Appeal||Paragraphs 25 to 30|
|Part 5. The law||Paragraphs 31 to 45|
|Part 6. Decision||Paragraphs 46 to 57|
|Part 7. Executive summary and conclusion||Paragraphs 58 to 60|
2. (1) In these Regulations
"assigned" means assigned other than on a temporary basis;
references to "organised grouping of employees" shall include a single employee;
"relevant transfer" means a transfer or a service provision change to which these Regulations apply in accordance with regulation 3 and "transferor" and "transferee" shall be construed accordingly and in the case of a service provision change falling within regulation 3(1)(b), "the transferor" means the person who carried out the activities prior to the service provision change and "the transferee" means the person who carries out the activities as a result of the service provision change;
A relevant transfer
3. (1) These Regulations apply to
(a) a transfer of an undertaking, business or part of an undertaking or business situated immediately before the transfer in the United Kingdom to another person where there is a transfer of an economic entity which retains its identity;
(b) a service provision change, that is a situation in which
(i) activities cease to be carried out by a person ("a client") on his own behalf and are carried out instead by another person on the client's behalf ("a contractor");
(ii) activities cease to be carried out by a contractor on a client's behalf (whether or not those activities had previously been carried out by the client on his own behalf) and are carried out instead by another person ("a subsequent contractor") on the client's behalf; or
(iii) activities cease to be carried out by a contractor or a subsequent contractor on a client's behalf (whether or not those activities had previously been carried out by the client on his own behalf) and are carried out instead by the client on his own behalf,
and in which the conditions set out in paragraph (3) are satisfied.
(2) In this regulation "economic entity" means an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary.
(3) The conditions referred to in paragraph (1)(b) are that
(a) immediately before the service provision change
(i) there is an organised grouping of employees situated in Great Britain which has as its principal purpose the carrying out of the activities concerned on behalf of the client;
(ii) the client intends that the activities will, following the service provision change, be carried out by the transferee other than in connection with a single specific event or task of short-term duration; and
(b) the activities concerned do not consist wholly or mainly of the supply of goods for the client's use.
Effect of relevant transfer on contracts of employment
4. (1) Except where objection is made under paragraph (7), a relevant transfer shall not operate so as to terminate the contract of employment of any person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to the relevant transfer, which would otherwise be terminated by the transfer, but any such contract shall have effect after the transfer as if originally made between the person so employed and the transferee."
i) Between May 2009 and 31st December 2010 the claimant was the only employee at Drivers Jonas and DJD responsible for managing the H20 properties in the Netherlands.
ii) For the purposes of regulation 3 (3) (a) (i) of TUPE the claimant constituted "an organised grouping of employees", which had as its principal purpose the carrying out of that property management activity on behalf of the client.
iii) The fact that between October 2009 and early March 2010 the claimant assumed some responsibility for the H20 German properties does not undermine the conclusion in sub-paragraph (ii). During that period she devoted the majority of her working time to the H20 Dutch properties.
iv) When the claimant returned to work in late March 2010 after her sick leave, she was working solely on the Dutch H20 properties. The fact that the claimant's future role was going to be reviewed makes no difference. In the event, following the merger with Deloitte LLP, the claimant's role remained the same, namely managing the H20 properties in the Netherlands.
v) In those circumstances there was a service provision change falling within regulation 3 (1) (b) (ii) of TUPE. Accordingly, pursuant to regulation 4 (1) of TUPE there was a relevant transfer of the claimant's employment from DJD to REM on 1st January 2011.
"Taking it first and foremost by reference to the statutory language, regulation 3 (3) (a) (i) does not say merely that the employees should in their day-to-day work in fact (principally) carry out the activities in question: it says that carrying out those activities should be the (principal) purpose of an 'organised grouping' to which they belong. In my view that necessarily connotes that the employees be organised in some sense by reference to the requirements of the client in question. The statutory language does not naturally apply to a situation where, as here, a combination of circumstances essentially, shift patterns and working practices on the ground mean that a group (which, NB, is not synonymous with a 'grouping', let alone an organised grouping) of employees may in practice, but without any deliberate planning or intent, be found to be working mostly on tasks which benefit a particular client. The paradigm of an 'organised grouping' is indeed the case where employers are organised as 'the [Client A] team', though no doubt the definition could in principle be satisfied in cases where the identification is less explicit."
Lord Justice Kitchin:
Lord Justice Floyd: