TUPE and offshoring
Employer not required to allow employee to relocate to the Philippines on UK terms under TUPE. The Claimant was employed by Xerox in the accountancy… Read more
Employer not required to allow employee to relocate to the Philippines on UK terms under TUPE.
The Claimant was employed by Xerox in the accountancy department in Wakefield. The work of the accountancy department was offshored to Xerox in Manila. It was accepted that TUPE applied to this transfer. The Claimant wanted to transfer to the Philippines on his current terms and conditions, this was refused and he was ultimately dismissed by Xerox Philippines by reason of redundancy. He brought a claim for unfair dismissal.
At first instance the Tribunal found that there had been a variation to the employee’s place of work in his contract and so he was entitled to work in the Philippines on his UK terms and conditions and that redundancy was not the real reason for dismissal. The real reason he was dismissed was because he wanted to remain on his current terms and conditions.
On appeal the EAT found that there had been no variation of the employee’s place of work. When the employee transferred under TUPE to Xerox Philippines it was on his current terms (including his place of work in Leeds or Wakefield not Manila).
The EAT also found that there was a genuine redundancy situation. Xerox Philippines did not require accountancy staff in Leeds or Wakefield and consequently the requirement for employees to carry out work of a particular kind in the place where the employee was employed had ceased.
The case was remitted back to the ET to consider the reason for the dismissal, and therefore the fairness of the dismissal.
Comment: This case does not provide any new or surprising guidance for employers offshoring, but it is useful to see the EAT considering TUPE transfers in the offshoring context as there are very few cases on this point. Whilst it does not mean that employers do not have to consider relocating employees and consulting with them, it does suggest that it is unlikely that that employers would be required to allow employees to relocate abroad whilst retaining UK terms that are much more beneficial than the local terms.
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