The claimant in Rynda (UK) Ltd v Rhijnsburger had insufficient continuity of service to bring a claim for unfair dismissal based on her service with Rynda. She wanted to add her employment with her previous employer but this would be possible only if she could show that there had been a service provision change (SPC) covered by TUPE between the previous employer and Rynda.
The claimant's employment history with her previous employer was:
- May to October 2009: six month fixed-term contract to manage commercial properties in the Netherlands
- October 2009 to March 2010: employment on the Dutch portfolio and also a German portfolio
- March 2010: claimant became ill and when she recovered it was agreed that she would work solely on the Dutch properties. She was the only member of the company doing so.
Towards the end of 2010 it became clear that Rynda would assume responsibility for managing the Dutch property portfolio. The claimant's employment ended on 31 December 2010 and she started with Rynda on 1 January 2011 with initial responsibility for managing the Dutch properties. She was dismissed in October 2011.
The Employment Tribunal dealing with the unfair dismissal claim decided that there had been a SPC at the end of 2010 and the claimant's employment had transferred to Rynda, so she did have the necessary length of service to bring her claim. The EAT agreed and went on to confirm how the SPC rules apply in the case of a single employee.
For an employee to transfer under the SPC rules, the essential requirements are (and will remain after the upcoming TUPE changes):
- An "organised grouping" of employees
- "Activities" required to be provided by the contractor to the client
- The activities are the "principal purpose" of the group
- The employee is assigned to the group.
Case law has established that the activities have to be fundamentally the same before and after the transfer – this is the point to be clarified in the amendments announced last week.
TUPE specifically says that an organised grouping can consist of a single employee, but the EAT stressed the point, made in the Seawell v Ceva Freight case earlier this year, that the employee must be consciously "organised" to work on the client's contract – it is not enough that the employee happens to spend all his or her time on that contract.
In this case, the EAT agreed with the Tribunal that the employer had made a conscious decision that, from March 2010, the claimant was to work exclusively and permanently on the Dutch portfolio, both in the sense that she was the only company employee managing that portfolio and in that it was to be the sole focus of her work. The SPC test was therefore satisfied and the claimant had the necessary continuity of service for her unfair dismissal claim.