ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00005226
Parties:
| Complainant | Respondent |
Anonymised Parties | A Manager | A Financial Services Provider |
Representatives | Ms Mary Paula Guinness, B.L., instructed by O'Mara Geraghty McCourt | DAC Beachcroft Solicitors |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00007005-001 | 14/09/2016 |
Date of Adjudication Hearing:08/01/2018
Workplace Relations Commission Adjudication Officer: Stephen Bonnlander
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 – 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complainant referred his complaint on 14 September 2016. It was then delegated to me on 20 March 2017. An initial question arose about the role of an industrial relations practitioner previously involved in arbitrating appeals in the matter (hereinafter “the arbitrator”), and the vicarious liability or otherwise of the respondent for the decision of the arbitrator. This will be dealt with in greater detail in the body of my decision below. With the consent and support of both parties, I decided to summon the arbitrator to give evidence in the matter. Due to considerable resistance on the part of the arbitrator to do so, the hearing of the complainant had to be adjourned several times until it eventually proceeded on 8 January 2018. The complainant’s complaint is about discriminatory treatment in terms of access to a very favourable voluntary redundancy package, on the ground of age. |
Summary of Complainant’s Case:
Written submission: Counsel for the complainant argues that in terms of the respondent’s vicarious liability for the actions of the arbitrator, it is clear from all written documentation submitted in evidence that the arbitrator acted as the respondent’s agent when he heard the appeals of staff members who were unsuccessful. She rejects a preliminary argument made by the respondent, that the within complaint should have been brought under S. 86, and confirms that the complainant is not alleging that any provision of the collective agreement which underpinned the voluntary redundancy process gave rise to discrimination. Rather, the complainant alleges that notwithstanding the neutral criteria agreed for access to the redundancy package, the decision not to let him access it was discriminatory on the ground of age. As regards the substantive claim, it was submitted that the complainant started working in the bank whose operations the respondent took over, in February 1978. The transfer happened on 1 March 2016. The complainant had been a team leader at the previous bank for many years until a restructure in 2014. Due to his personal circumstances, he felt forced at that time to accept a lesser position as case manager, even though his terms and conditions of employment were unchanged. He was given to understand that a redundancy programme would be offered soon. When the voluntary redundancy programme was opened to employees, the complainant chose to apply for it as his preferred option. The complainant then had two meetings with a senior manager and one further meeting with the respondent’s HR manager, at which he was told that his application had been unsuccessful. The complainant appealed this decision. He wrote a detailed letter of appeal, setting out the rationale for why he should be allowed to avail of the programme, to the appointed arbitrator. He noted that whilst the application form had not allowed staff to expand on the rationale for their application, the respondent had accepted such extra documentation from other staff. The complainant stated that this led to his personal circumstances not being adequately considered during the application process. He subsequently met with the arbitrator and set out his reasons again. He was informed by the arbitrator that the arbitrator was due to discuss all appeals with the respondent senior management after they had been heard by him. The complainant was subsequently informed that his appeal had been unsuccessful. The complainant points out in his submission that a number of appeals to the arbitrator were successful, and that the only appeal which was unsuccessful was of a colleague aged 55, and with 36 years’ service. He also states that a number of staff who had received voluntary redundancy were subsequently re-engaged by the respondent. Oral evidence: The complainant was 57 at the time the alleged discriminatory events occurred, and 58 at the time of hearing. He gave evidence of his lengthy service with the transferor bank, which he had joined as a school-leaver in 1978. His highest position during his career was as acting manager in a branch in the south-west of Dublin. He outlined what he saw as his demotion by the transferor bank, but that it was intimated to him that another redundancy programme would occur within a few years. In fact, quite a bit of the complainant’s evidence related to news heard, as the phrase goes, “on the grapevine”. Whilst I have sympathy for that situation, since this is how workers usually hear news, it does not make for very strong evidence, which I pointed out to the complainant. As regards his personal situation, he gave detailed evidence as to why he did not feel suitable for the role for which the respondent wanted to employ him. He also spoke in detail about the relative inconvenience of his new commute, which went from a 15-minute bike ride to a 50-minute car drive, with the loss of his company car. He later clarified that the company car was a 2 litre BMW, which the complainant felt not able to purchase from the transferor bank, given that it wanted €29,000 as a buyout sum. He stated that it was difficult to buy a car from the €10,000 per year car allowance which the respondent had granted to him, once petrol, repairs, tax, insurance etc. were factored in. The complainant also stated that his annual salary was just over €90,000. The complainant also strongly disagreed with the assessment of the traffic situation made by the respondent, that is, that from his suburban Dublin location to the Co. Kildare town, he would go against the flow of traffic and that his commute would therefore not be unduly hard. He said that just getting on to the M50 in the morning would entail significant delays. He further made the point that people who did own cars and who had, in his opinion, significantly less arduous commutes to the new location, nevertheless received redundancy. He referred extensively to a colleague who had the same length of service as him, who did receive redundancy. He also made the point that family status, which influenced some of the decision, was not originally among the criteria communicated to staff. |
Summary of Respondent’s Case:
Written submission: The solicitor for the respondent raises the preliminary point that since the arbitrator was not an employee of the respondent’s, the complaint is misconceived. It submits that the specific arbitrator appointed to hear the appeals was appointed pursuant to a collective agreement and at the insistence of the trade unions negotiating with the respondent’s management. It therefore denies that the arbitrator was its agent. In the alternative, the respondent argues that it took such steps as were reasonably practicable to prevent discrimination from occurring, pursuant to the defence provided in S. 15(3), by striking a collective agreement about the redundancy process which, it is submitted, did not contain any discriminatory provisions. The respondent further submits that in its view, the within complaint should have been brought under the provisions relating to collective agreements set out in S. 86 of the Acts, or alternatively, under the Industrial Relations Acts. It submits that the facts in this case are not capable of grounding a discrimination complaint. It further argues that in case the complainant meant to bring a complaint pursuant to S. 86 of the Employment Equality Acts, it should also have brought the complaint against the relevant unions. As regards the substantive claim, the respondent denies any discrimination of the complainant. It denies that there was any budget for the redundancy programme, as the complainant had averred in his complaint form (rather than his submission). The respondent states that the complainant, having been retained in his position, received enhanced benefits in line with the collective agreement, like a 2% salary increase (€1,803.36 p/a), a special allowance of 1% (€900 p/a), a relocation allowance of €700, a lunch allowance of €2256 p/a and a car allowance of €10,000 p/a. The respondent accepts that the complainant could not keep the company car since it does not operate such a programme, but it points out that the complainant received the benefit of a hire car while the complainant was coming to a decision whether he wished to purchase the company car from his previous employer, the transferor. Overall, the respondent submits that the complainant’s annual income increased by some €24,600. The respondent’s main defence of the within claim, in terms of how access to the redundancy programme was handled, is that all 160 staff which it has taken over from the transferor were put at risk of redundancy, since it was not clear at that point for whom the travel to the new office location outside of Dublin would be unreasonable. It states that the complainant’s role was correctly mapped across and continued to exist. The assessment of the complainant’s application was then considered against the distance, time, and cost of getting to the new office location. Whilst the respondent accepts that it also considered equality issues, in particular with regard to family status and caring and child-raising obligations of individual staff, it strongly denies any age discrimination of the complainant. In particular, the respondent submits that the following factors were considered: The overall distance, time, and cost of getting to the new office location 25 kilometres west of Dublin, in comparison with the former Dublin 2 location – an assessment which was completed individually for each redundancy applicant, with reference to the AA Ireland route planner; Personal issues, such as not having a car or childcare issues; Substantial increases in travel time, cost, or inconvenience for the employee; Equality considerations regarding the family status ground. About the appeals process, the respondent submits that because of the collective agreement which governed the redundancy process, it was legally bound to accept the arbitrator’s decisions. The process itself stipulated that once an appeal was lodged, the arbitrator would be provided with the relevant job description, the original application for redundancy and other relevant documentation, including the weighting used to make the original decision and the assessment sheet. The employee would then meet with the arbitrator to discuss the appeal. The arbitrator would then hold a separate meeting with the Hiring Manager (assessor) and the HR representative who assessed the original application. The respondent notes in its submission that the complainant bases his complaint on what he sees as his lack of suitability for his role, a number of health concerns, including stress, and the change in his commute from bicycle-based to car-based and the loss of his company car. The respondent submits that none of these concerns are specifically related to age. The respondent acknowledges that the complainant cites his long service of 38 years, but states that this was not a criterion for selection for redundancy. In particular, the respondent submits that a role would not be redundant by reason of illness of the job holder. It submits that the arbitrator noted in respect of his decision that it was reasonable to expect the complainant to commute to the Co. Kildare office location. Specifically, about the ages of staff who were accepted for voluntary redundancy, the respondent refers to some of the complainant’s documentation and analysis, which shows that staff in their 50s, including a staff member with the same service as the complainant, were made redundant. The respondent asserts that this proves that age was not a factor in granting or denying access to the redundancy package. Finally, the respondent categorically denies that financial considerations played any role in denying the complainant access to the redundancy package. It submits that there was no budget, and that the cost of the entire project was just under €10 million for the respondent. The complainant’s package, if approved, would have been a very small part of this. Furthermore, there were over ten employees selected for redundancy whose individual packages were more than €150,000. Oral evidence: Ms A., who was the respondent’s HR manager at the material time, gave evidence that for the redundancy programme, the respondent looked at skills first and then at location, in terms of how inconvenient the commute would be for transferred staff. Ms A. explained that the relocation could render a role redundant, since an unreasonable request in terms of commuting could be considered a constructive dismissal. Once these factors had been considered, in cases where there were more roles than people, the longer-serving employees had preference for staying on. This is also how the complainant was selected to stay with the respondent organisation. In total, there were five different job groups to transfer across to the respondent organisation. As regards which employees had access to cars or not, Ms A. stated that the respondent took that information on trust and did not seek to research it further. Mr B., who at the material time was Head of Asset Management, was heavily involved in the consultations around the redundancy process and was the decision maker prior to the appeals process undertaken by the arbitrator. He was involved in assessing the skills of the staff who would transfer and mapping them across into new roles. He disputed in particular that the complainant’s role was overly complicated or stressful and averred that during a recent, lengthy sick absence of the complainant, it was filled by a recent graduate with no problems. He further stated that he lives in a Dublin suburb even further away from the office location than the complainant, and that his own commute is 30 minutes one way by car. He disputed the complainant’s descriptions of traffic problems on the M50. He also reiterated several times his opinion that a €10,000 per year car allowance is in fact very generous, even when it is taxable. As regards the appeals process, he confirmed that he met with the arbitrator before the arbitrator finalised his decision, and that no minutes of this meeting are extant. |
Findings and Conclusions:
Preliminary issue I: Respondent’s vicarious liability for the decision of the arbitrator Whilst I raised this issue with the parties prior to hearing, I am now satisfied from the available evidence, which includes a statement made by the arbitrator at the beginning of the hearing, that the respondent contracted with the arbitrator to provide an arbitration service and that the arbitrator is therefore an agent of the respondent within the meaning of S. 15 of the Employment Equality Acts. Ms A. also confirmed in evidence that the arbitrator was paid an honorarium by the respondent. That the respondent engaged this particular arbitrator at the behest of its unions, and that it agreed to be bound by the arbitrator’s decision, does not take from this reality. The arbitrator in question is a retired industrial relations professional in private practice who provided the respondent with a service. The arbitrator also confirmed that the last people he consulted – after the appellants – before arriving at his decision were the same respondent managers who had made the original decision. This was also confirmed by those managers in direct evidence. The arbitration was not a process in which both parties were in the room together and could challenge each other’s statements. It is therefore only right and proper that the respondent should be vicariously liable for the ultimate outcome of the appeals process. Furthermore, the High Court decision in The Governor and Company of the Bank of Ireland v. James Reilly [2015] IEHC 241 is authority that an independent industrial relations expert in private practice, who is not part of the State’s statutory industrial relations machinery and who is hired by an employer to hear an appeal, is the responsibility of that employer with regard to his or her actions. On a final note, to hold otherwise would also deprive workers of important statutory rights, given that such private IR practitioners are not their employers and would therefore not be legally liable for their actions otherwise. I am therefore satisfied that the respondent has been correctly named in the within complaint and that I can proceed with my decision. Preliminary issue II: Should the complaint have been brought under S. 86 of the Acts? I am also satisfied from the evidence provided on this point, including the full text of the collective agreement which governed the redundancy process, that the complaint was correctly brought under S. 77 of the Acts. The collective agreement is of a high standard and does not contain any potentially discriminatory provisions which could trigger a complaint, nor has the complainant ever alleged that this was the case. I will now proceed with considering the substantive complaint. Substantive Complaint I should first note that whilst the arbitrator eventually did agree to appear at the hearing after months of wrangling via email, having been summoned by me pursuant to my powers under S. 95 of the Employment Equality Acts, he only gave a statement and refused to be cross-examined on any evidence. He further opined that he was not properly summoned. He regards himself as the “previous decision-maker” akin to an appeals process within a statutory framework, who should not have to give evidence at the next instance. I do not agree with this interpretation. The arbitrator is retired from such a position, and his current arbitration work is simply part of his private IR practice. In this situation, he does no longer enjoy any kind of judicial immunity. I further note that adjudication officer colleagues within the WRC who provide similar IR services in other parts of their working lives, do give relevant evidence in WRC investigations as a matter of course. That said, the Employment Equality Acts do not give me any powers to hold a witness, summonsed under S. 95 or otherwise, in contempt of court. Accordingly, had one of the parties’ representatives started to cross-examine the arbitrator on his statement, I could not have stopped him had he simply walked out of the room. To avoid such embarrassment, I agreed that the arbitrator could leave the hearing after he made his statement and after I had explained this limitation of my powers to the parties. I nevertheless concur with the representatives of both parties that this is a fundamentally dissatisfying situation. It is however not within my gift to change. The high level of professionalism which all representatives brought to bear on this unusual situation is gratefully acknowledged. In terms of which staff to give access to the very generous terms of the voluntary redundancy programme, the respondent was faced with a situation where there were more applicants than could be facilitated, given its continuing staffing needs. I accept the respondent’s evidence that monetary considerations did not come into its decision-making process and also its evidence that a redundancy package for the complainant would not have made a significant difference in terms of cost. Besides, the respondent was reimbursed for the costs of the programme by the transferor, as witnesses for the transferor confirmed during the hearing. In order to facilitate its decision-making process, the respondent drew up tables of redundancy applicants with their names, roles, personal circumstances and commuting situation which were fully opened to the Commission, both for successful and unsuccessful applicants. The applicants’ ages were not originally contained in the tables, but were added for the purpose of providing evidence to the Commission. The information on age was not challenged by the complainant, although he did challenge other details, which I will return to below. To recite the data contained in these tables would mean to overload this decision with individual facts. The salient point is that overall, there is no discernible difference in the age composition of the successful and unsuccessful group – successful in availing of the redundancy package, that is. Looking at the complainant’s age group of workers over 50, I note that four applicants over 50, including the complainant, were unsuccessful, and the same number of workers were successful. This simply does not support the complainant’s contention that age was a factor used in selection for redundancy. The complainant’s personal disappointment for not being selected for the package is clear, and from his perspective, understandable. The complainant in his evidence made two points which I feel should be addressed: First, he alleged that some of his colleagues provided misleading information in their applications for redundancy, and were given access to the package based on that information. The complainant was exercised that people who did own cars stated in their applications that they did not do so. The complainant felt that the respondent should have checked these details more fully. Ms A., for the respondent, confirmed in her evidence that the respondent did not go behind the information provided by the applicants. Even if the complainant’s statements on this point were more than allegations, which they are not, and if they had any link to age, which they do not, I would nevertheless be reluctant to base any kind of legal finding on them. One of the fundamental aspects of any employment relationship is mutual trust between employer and employee. That is, there is an obligation on employers to start from a position of trust towards their staff. It also must be recalled that all staff in question had only just transferred into the employment of the respondent following a transfer of undertaking. But even in general, I think that questions of a worker taking unfair advantage of an employer’s generosity are best left to management to address, as long as the worker’s right to fair procedures is preserved, rather than addressing them in the context of litigation. The complainant also argued at length about the strenuousness of his new commute. I accept that driving to Co. Kildare every day is more cumbersome than a short bicycle commute to Dublin 2. I also accept that it puts the complainant at greater expense than before. That said, I cannot accept that his new commute is so inconvenient as to be unduly difficult. The relevant town on Co. Kildare is also home to a large public sector organisation, many of whose staff commute daily from Dublin suburbs close to where the complainant lives, or even further afield. I therefore accept the respondent’s assessment that the complainant’s new commute was not unduly difficult. Neither can I accept that the car allowance which the respondent paid to the complainant should have covered the purchase of a car. A car is an asset after all, which can be re-sold, if only at a depreciated value. It is not an expense, which is what an allowance is meant to cover. Also, considering the complainant’s rather considerable annual salary of over €90k, I find it hard to believe that he would have been unable to afford the purchase of a car. Besides, many workers in this country have no choice but to commute to work in their cars every day, which they mostly buy themselves, and for which they receive no assistance from their employers in terms of running costs. So, whilst the complainant’s subjective sense of disappointment about the diminution of the extremely favourable position he had found himself in in the service of the transferor, is understandable, I do not think that this can ground a complaint of discrimination in his terms and conditions of employment. Besides, these terms and conditions were the same for all staff who transferred into the respondent’s employment, and as already noted, that selection was not made on the basis of age. For all of these reasons, the complainant’s case cannot succeed. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I find that the respondent did not discriminate against the complainant on the ground of age pursuant to S. 6(2)(f) of the Employment Equality Acts 1998 to 2015, in terms of access to voluntary redundancy package, in his terms and conditions of employment, or in other discriminatory conduct. |
Dated: 13/04/18
Workplace Relations Commission Adjudication Officer: Stephen Bonnlander
Key Words:
Age – discrimination – terms and conditions of employment – vicarious liability for IR practitioner conducting appeals process – complaint not about collective agreement pursuant to S. 86 of the Employment Equality Acts. |