The Facts
From May to October 2009 the employee was employed by DJ under a 6 month fixed term contract to manage premises in the Netherlands for one of DJ’s clients. From October 2009 she took on an associate role for DJ managing a portfolio of Dutch properties and also took on responsibility for the management of the office dealing with German properties for H2O.
From March 2010 after a period illness and when the employee returned to workit was decided she would be confined to the managing the Dutch portfolio. She was the only employee doing so. On 1 April 2010 her employment transferred to DJD. At the end of 2010 the Respondent assumed responsibility for managing the Dutch portfolio.
The employee’s employment ended with DJD on 31 December 2010 and began employment with the Respondent on 1 January 2011.
The ET held that the employee, albeit on her own, was an organised grouping that carried out the activity of property management services of the H20 properties in the Netherlands. This was not the product of accident or happenstance but was the product of a deliberate decision taken by DJD before the transfer there was therefore a service provision change with Reg 3(1)(b).
The EAT
The EAT upheld the decision following the reasoning in the Court of Session decision in CEVA Freight (UK) Ltd v Seawell Ltd . and Eddie Stobart Ltd v Moreman. It held that the ET had correctly focussed on whether the employee had become part of an organised grouping by a process of conscious organisation rather than accident or happenstance.
It rejected the Respondent’s argument that the ET had focussed on the work actually done rather than the question of whether the Respondent had deliberately organised the employee into a grouping to work exclusively on the Dutch portfolio.
Other arguments including; that the period of the employees employment with DJD which commenced in April 2010 was a temporary arrangement and therefore the employee was not ‘assigned’ within the meaning of Reg 2 which (where ‘assigned’ is defined as meaning ‘assigned other than on a temporary basis’) were rejected.