Rynda (UK) Ltd v Rhijnsburger UKEAT/0570/12/LA

TUPE: Latest EAT decision on Service Provision Changes

In a judgment published on 9 September Recorder Luba QC sitting in the EAT faced yet another appeal on the meaning of “Organised grouping of employees” and whether the Claimant was “assigned” to the same. The case concerned the manager of property portfolios in the Netherlands following the merger of Drivers Jonas and Deloitte in 2010.

Dismissing the appeal and finding that the judge below had properly directed herself in all respects, Recorder Luba QC approved the recent Scottish Inner House decision in Seawell Ltd v Ceva Freight (UK) Ltd [2013] CSIH 59. He found that the question of whether there is an ‘organised grouping’ of employees must be assessed at the point immediately before the alleged transfer. Such a grouping requires ‘an element of conscious organisation’ by the employer ‘of the nature of a team’ and should be assessed by reference to employer’s intentions, objectively assessed, at that time.

This decision finally brings to an end the ‘subjective/objective’ debate which arose following the decisions in Eddie Stobart v Moreman etc. In light of the recently published decision of the government not to repeal the Service Provision Change provisions in the near future, the are can return to some welcome calm for the time being.

Aidan Briggs represented the Claimant at both trial and appeal stages.