News & Legal Updates
Sign up to news & legal updates
The circumstances in which a service provision takes place under the TUPE Regulations 2006 (“TUPE”) include where party A is appointed to undertake activities on behalf of a client which had previously been undertaken by party B on behalf of the client. This captures the classic situation where there is a change of contractor. An employee seeking TUPE protection must establish that they formed part of an organised grouping of employeeswhich had as its principal purpose the carrying out of the activities concerned on behalf of the client.
In Rynda (UK) Ltd v Rhijnsburger, the Court of Appeal faced the question of whether a single employee could satisfy the organised grouping test in circumstances where that employee had been instructed by her employer to carry out all of the activities necessary to provide the services to the client.
The employee was responsible for managing the Dutch properties within an asset fund. She had no other duties and worked full time managing the Dutch properties without any assistance. The Court summarised the approach to be taken in service provision cases as follows:-
- Identify the service that party B was providing to the client
- List the activities performed by the staff of party B in order to provide that service
- Identify the employee or employees who performed those activities
- Consider whether party B organised that employee or those employees into a “grouping” for the principal purpose of carrying out the activities.
The Court held that the employment tribunal and the EAT had applied the correct test in finding that the employee did constitute an organised grouping.
Previous cases were distinguished on the facts. In particular,Eddie Stobart Ltd v Moreman was distinguished on the basis that there was a positive decision on the part of the employer in the Rynda (UK) Ltd case which resulted in the employee working exclusively on the Dutch properties. By way of explanation, the EAT held in Eddie Stobart that employees were not an organised grouping in circumstances where the assignment of employees to the particular activities was as a result of unplanned circumstances, namely shift patterns.
The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.
Blackadders takes all reasonable steps to ensure that the content of this site is accurate and up to date. The site is not, however, intended as a substitute for seeking legal or other professional advice but rather as an informative guide to the services provided by Blackadders and topical legal developments. Site visitors should always seek advice tailored to their specific situation. Consequently, Blackadders accepts no responsibility for any loss or damage suffered by anyone acting or failing to act on the basis of information contained on this site. Downloading of material contained on this site is at the user’s own risk and all necessary virus checks must first be carried out by the user. Blackadders is not responsible for the material found on any web sites linked to this one and links to this site may only be made with Blackadders prior consent.
Blackadders owns the copyright in this blog and all material contained on it. The material on this site may be downloaded for personal use only and must not be altered. Otherwise, Blackadders’ written consent is required before any material on this site is reproduced, copied or transmitted in any way.
Information passed to us via this site is kept confidential and will not be disclosed to third parties except if authorised by you or required by law.
© Blackadders LLP 2020
Members of the Law Society of Scotland.
Blackadders Solicitors is a trading name of Blackadders LLP, a limited liability partnership, registered in Scotland No SO301600 whose registered office is 30 & 34 Reform Street, Dundee, DD1 1RJ. Reference to a ‘partner’ is to a member of Blackadders LLP.Back to News & Legal Updates