The claimant in Khan v HGS Global Ltd was employed at a call centre in Chiswick, as a team manager on a campaign for a customer.  When the customer decided it would in-source the work and run it from its premises in High Wycombe, this amounted to a TUPE transfer.

During the collective consultation process, employee representatives raised concerns about the extra distance those employees transferring to the customer would have to travel.  In response, the employer announced that those looking at a journey time in excess of 75 minutes would have three options:

  • relocating to the transferee in High Wycombe
  • applying for any available roles with the employer
  • potential redundancy

The claimant was one of those facing a journey time of over 75 minutes if he transferred. In individual consultation meetings it was made clear he had the three options. He opted for redundancy, confirmed this choice in later meetings and received a severance package including a statutory redundancy payment, pay in lieu of notice and holiday pay. When he later brought an unfair dismissal claim, the Tribunal rejected it on the basis that the circumstances hadn’t given rise to a dismissal – the employment contract had ended by mutual consent.

The EAT agreed. The claimant was repeatedly advised of the options; he was never told he would not be allowed to transfer nor put under pressure to opt for redundancy. The options had generally been pitched in neutral terms; the undesirability of the new journey was not exaggerated, nor was it suggested that it might be better to take redundancy.  In fact, the transferee took the view that journey time was reasonable and redundancy for those who did not share that view was granted as a concession in response to concerns raised by employee representatives. The EAT noted that the claimant had not chosen to argue that the new journey time might be a substantial difference in terms and conditions such as to mean he had been dismissed under TUPE.