Xerox Business Services Philippines Inc Ltd v Zeb UKEAT/0121/16/DM

Appeal against findings that there had been a variation in the Claimant's contract of employment, that he was not redundant and that he had been unfairly dismissed. Appeal allowed and remitted to a fresh Tribunal.

The Claimant worked in the Finance Accounting Team forĀ X UK. His contract provided for his work location to be "Leeds or Wakefield" - he worked in Wakefield. In 2014, X UK took a decision to move some work to offshore locations including the Finance Accounting Team function from X UK in Wakefield to the Respondent at Manila in the Philippines. Employees were given a choice: either to reject the transfer and be made redundant, receiving a generous redundancy package; or to accept the transfer and be made redundant, receiving only the statutory redundancy pay (because the Respondent would have no requirement to carry out the transferring work in the UK after the transfer). The Claimant asked to transfer to the Philippines but on the same terms and conditions as he then was, rather then the local ones. The Respondent rejected this request saying that the effect of TUPE was that he would transfer on his existing terms and conditions, including his work location and that he was not employed to work in the Philippines, so his role was redundant, as the Respondent had no requirement for the work he was employed to do in Wakefield. The Respondent dismissed the Claimant, paying him his statutory redundancy payment, a payment in lieu of notice and accrued holiday. The Claimant claimed unfair dismissal at the ET and won. The EJ found that there was a definite vacancy in the Philippines. The only issue was the terms and conditions. If he had accepted local terms and conditions, the Respondent would have facilitated a move to the Philippines. The Respondent appealed.

The EAT allowed the appeal. Regarding the contract of employment, it held that there had been no variation. Following the transfer, the Respondent was required, as before the transfer, to employ the Claimant at Wakefield and to pay his salary. It was not required to employ him in Manila at the same salary in the absence of a variation of the contract. The provisions of TUPE did not entitle the Claimant to vary his contract unilaterally so as to change his location of work. Also, her reasons for finding that the Claimant was not redundant had failed to apply the statutory wording in section 139(1)(b)(ii) of the Employment Rights Act 1996.

Published: 05/09/2017 10:59

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