We TUPE aficianodas have a fond recollection of Mrs Schmidt, a cleaner in a German bank who, in 1994, was found to be a “stable economic entity capable of preserving its (her) identity” following a TUPE transfer (Christel Schmidt v Spar- und Leihkasse der früheren Ämter Bordesholm, Kiel und Cronshagen (Case C-392/92, (1994)).
Fast forward to 2015 and the matter of a single worker has again been considered, this time in the Court of Appeal case of Rynda (UK) Limited v Ailien Rhijnsburger, handed down on 13 February. Rynda owns a large portfolio of properties across Europe. Drivers Jonas LLP acted as agent to manage the properties. In May 2009 Ms Rhijnsburger was engaged by Drivers Jonas on a six months’ fixed term contract to manage the properties in the Netherlands. In October 2009 her role expanded to become an Associate, Asset and Property Management, Europe Group.
In April 2010 Drivers Jonas LLP merged with Deloitte LLP to become Drivers Jonas Deloitte LLP (DJD). In autumn 2010 DJD decided to pull out of managing properties and notified Rynda Group accordingly. Rynda decided to pass the property management duties to Rynda Real Estate Management Limited (REM) which subsequently became Rynda (UK) Limited. Another straightforward, easy to follow TUPE case!
At the end of 2010 Ms Rhijnsburger moved from DJD to REM and took up the post of Senior Asset Manager on 1 January 2011. In effect she did exactly the same job as before. In September 2011 she was dismissed and brought an employment tribunal claim for unfair dismissal. One of the questions for the tribunal was whether her employment commenced on 1 January 2011 or whether she could carry forward her prior employment with DJD for the purpose of calculating continuity, in which case her employment commenced in May 2009. The tribunal held that there was a relevant transfer, as did the Employment Appeal Tribunal.
The Court of Appeal also found in favour of Ms Rhijnsburger. She had been employed first by Drivers Jonas LLP and then DJD to manage properties in the Netherlands owned by subsidiaries of Rynda. On 1 January 2011 REM took over that work and she became an employee of REM. REM subsequently dismissed her. For the purposes of TUPE Ms Rhijnsburger, although an individual employee, did constitute “an organised grouping of employees” and was protected. In this regard it did not matter that between October 2009 and March 2010, in addition to her main duties, she spent a lesser part of her time managing Rynda properties in Germany.