Generally, the fact that one’s work is being transferred overseas is enough to make an employee object to the transfer. But in the case of Xerox v Zeb, the employee decided that he was willing to relocate from Wakefield in the UK to Manila in the Philippines. The question was whether he was entitled to transfer with his UK terms and conditions of employment preserved.

Background

Mr Zeb worked in the Finance Accounting team at Xerox in Wakefield. In 2014, Xerox decided to move the services carried out by his team offshore to Manila. The transfer of services was covered by the transfer of undertakings legislation (TUPE). The affected staff were given a choice of either objecting to the transfer, in which case they would receive an enhanced redundancy package, or not objecting, in which case they would receive statutory redundancy pay only.

Mr Zeb chose not to object to the transfer. He argued that under TUPE he was entitled to transfer to Manila on his UK terms and conditions of employment. These were much more favourable than the local terms and conditions on offer for the job, therefore Xerox (who was hoping to make cost savings by moving the jobs offshore) disagreed. Xerox dismissed Mr Zeb in October 2014 and paid him statutory redundancy.

The claim

Mr Zeb complained that he had been unfairly dismissed. He argued that redundancy was not the real reason for his dismissal, but, if it was, Xerox had failed to follow the correct procedure before making him redundant. The Employment Tribunal agreed with Mr Zeb that redundancy had not been the real reason for his dismissal. It further found that his contract had been varied under TUPE and he was entitled to work in the Philippines under his UK terms and conditions. Xerox appealed the Tribunal’s decision.

Appeal decision

The Employment Appeal Tribunal (EAT) disagreed with the Tribunal’s judgment. It found that Mr Zeb’s employment contract had not been varied because the parties had not agreed as to the proposed change to his terms. Mr Zeb wanted to changed his place of work to Manila, but retain his remaining UK terms, while Xerox would only accept his relocation to Manila if he was employed under the same terms as local staff. No agreement had been reached and the contract could not be varied unilaterally, therefore Mr Zeb’s contract had not been varied.

The EAT also found that the Tribunal had erred when considering the reason for dismissal as the judge had failed to apply the requisite test for redundancy dismissals correctly. The EAT found that the Tribunal should have focused on the reason for Mr Zeb’s job being terminated, and not why Xerox had refused to employ him offshore. A further error was the Tribunal’s failure to consider Regulation 7 of TUPE which covered transfer-related dismissals.

In conclusion, the EAT allowed Xerox’s appeal and remitted the case to a new Tribunal for reconsideration.