UDD2537

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00045147 (CA-00055961-001).

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 22 January 2024 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015.

Labour Court hearings took place on 30 September and 1 October 2025.

The following is the Decision of the Court:-

DECISION:

1. Background to the Appeal

This is an appeal by Grainne Flannery against a Decision made by an Adjudication Officer (ADJ-00045147, CA-00055961-001, dated 15 January 2024) under the Unfair Dismissals Act, 1977 (“The Act”) in relation to a complaint made against her former employer Mercer that she was unfairly dismissed. The Adjudication Officer found the complaint was not well founded.

Ms Flannery appealed the decision to the Labour Court on 22 January 2024. A hearing of the appeal was partially heard, however, due to the unavailability of a Court member, the division assigned to hear the appeal ceased to exist, and a newly appointed division of the Court was assigned to hear the appeal afresh. That division of the Court heard the appeal and a linked appeal EDA2571 on 30 September and 1 October 2025. Ms Flannery availed of the use of stenographer during the hearing. 

For ease of reference the parties are given the same designation as they had at first instance. Hence Ms Flannery is referred to as “the Complainant” and Mercer is referred to as “the Respondent”.

2. Background to the Complaint

The Complainant commenced employment with the Respondent on 29 April 2019 as a Secretarial Assistant. She was appointed to Share Schemes Administrator on 20 April 2020 and worked on portfolio of schemes varying in size and demand. Her employment was terminated by reason of redundancy in March 2023.   

3. Summary Position of the Respondent

The Complainant’s employment was terminated because of a genuine redundancy. 

On 31 January 2023, the Complainant was notified by letter that the Share Scheme business in which she worked was under review and that as a result her role was at risk of redundancy. The letter made clear that no decision had yet been made and that the letter did not constitute a notice of termination, rather it was the commencement of a consultation process.

The rationale underpinning the decision to make the Complainant’s role redundant was clearly set out to her. Ultimately, a restructuring of the business was required, which included the outsourcing of certain administrative tasks to India, thereby reducing the requirement for four employees at grade C level in the Share Scheme Administration Services.

The Respondent engaged in a comprehensive consultation process. The Complainant expressed a preference to engage in the consultation process in writing rather than face-to-face meetings. She was clearly advised of the reasons why her role was at risk. She engaged fully in the process and raised numerous queries in correspondence over an extensive consultation period. The consultation timeframe was extended to afford the Complainant a full opportunity to ask questions and considered the responses provided. It is clear from the correspondence that the Complainant’s queries were responded to in detail and that the points raised by the Complainant were given full and careful consideration. The Respondent has at all times acted reasonably, and in accordance with its statutory obligations.

The selection of the Complainant for redundancy was by way of an objective scoring process using a standard matrix used throughout the Respondent organisation in relation to redundancy. The Complainant had the lowest score and consequently her role was identified as being at risk. This was entirely in accordance with the procedures and custom and practice of the Respondent

The Respondent had a careers portal which listed available vacancies, the link to which was shared with the Complainant during the consultation process on several occasions, and she was expressly invited to discuss any open roles that might interest her. The Complainant did not engage with the Respondent regarding any alternative roles.

The features of impersonality and change were present in the case of the Complainant’s redundancy. A genuine bone fide redundancy arose following restructuring. The business could carry on without the Complainant’s post, as her role was not replaced.

4. Summary Position of the Complainant

The Complainant contends that she was unfairly dismissed without due process as part of a sham redundancy process. The process was bogus, given no voluntary redundancies were offered to other colleagues within the organisation, no assistance was offered by the Respondent in seeking out alternative roles within the organisation, nor were any alternative roles sought out. The redundancy was a fait accompli and used as a ‘smokescreen’ to oust the Complainant from her position because of her age and disability.

The Complainant was targeted since attending an interview on 29 November 2021 where she was not provided with reasonable accommodation for her hearing impairment. Two weeks later, she was informed that she had not passed a Performance Improvement Plan (PIP), despite overworking. Technical disruptions which impacted her duties were not recognised by management when the Complainant failed to pass her PIP.  The Complainant had to endure work micro-management and attend disciplinary meetings alone and without representation. The company did not listen to her and the Complainant strongly felt that she was placed on a PIP as a form of retaliation.

In December 2021, the Complainant was diagnosed with work related stress. On her return to work in January 2022, she was required to attend an occupational health clinic. She was subject to further discrimination during the occupational health assessment on 12 January 2022 when asked inappropriate questions and not given a proper medical assessment. The occupational health report shows the Complainant’s deafness being treated as an easy target.

The Complainant raised regulatory concerns about how the occupational health clinic was regulated. In the same month, the Respondent instigated a fake redundancy process which constitutes unfair dismissal.

The Complainant contends that there was a strategic plan to push her out of the Company because of her age and disability, which resulted in her unfair dismissal in April 2023. The Complainant was not provided with reasonable accommodation for her hearing impairment and instigated discrimination complaints on the grounds of her age and disability. The Respondent micromanaged the Complainant’s role and implemented a Performance Improvement Plan (PIP), which were further tactics utilised to manage her out of her position.

5. Testimony of Joanna O'Dowd – People Leader

Ms O’Dowd outlined that the Respondent company has centres of expertise in separate locations, with a large support function based in Pune, India, with 150 employees. Aspects of some roles are retained in Ireland for Regulatory reasons. The business rationale for the redundancy in this case was the outsourcing of data entry work relating to Pillar one and Pillar two to Pune. As a result, there was less need for staff on the team in Dublin.

Ms O’Dowd outlined the general approach to implementing redundancies in the company. HR engages with the business to understand the business rationale and people impacts. A standard selection matrix with objective criteria is used. The matrix is well established, and the criteria are performance history over the past three years (50%), relevant educational qualifications for the role (25%) and experience /length of service (25%). The Respondent reduced the weighting for performance history from 60% to 50%. Performance ratings are recorded on the online performance review system and communicated to employees annually in February the following year. The Respondent does not make the matrix available to staff, so a person is unaware when scoring is in progress.

The Complainant had the lowest score in the matrix. Her performance scores were “off track” for 2020, 2021 and 2022. The Complainant was aware that she was “off track”. The Respondent deemed the Qualified Financial Advisor (QFA) qualification to be the most relevant qualification for the role.

The Complainant was the only person made aware that her role was at risk of redundancy.

The Respondent explains the redundancy process to individuals at consultation meetings. The consultation process with the Complainant was not a fait accompli and went on for an extended period. It did not have a predetermined outcome.

The company looks at alternatives to redundancies, through natural attrition or expiry of fixed term contracts during the consultation process. Other opportunities In the business are shared with impacted employees. If no opportunities are available, employees are directed to online vacancies and the talent acquisition team. If nothing is available internally, outplacement services and an ex-gratia payment with a contribution towards legal fees are provided. Standard wording is used in settlement agreements.

Under cross examination, Ms O'Dowd said that voluntary severance was not offered to the wider team, as the established practice in the company is to implement compulsory redundancies which creates less anxiety and stress than putting a wider group at risk.

6. Testimony of the Complainant

The Complainant evidence was that the redundancy was a sham process and there was a conspiracy to oust her from the company since 2021.

The Complainant was appointed as a share scheme administrator in April 2020 and had no performance issues in that role. In December 2020, systems issues arose which were not rectified. Her performance rating did not take account of these technical difficulties.

The Complainant applied for a new role in April 2021 but was unsuccessful. She did not receive reasonable accommodation at interview, as one person attended via zoom. She notified HR that conducting an interview via zoom was not deaf-friendly. She felt targeted from that time onwards.

In August 2021, the Complainant was subject to a PIP process. She participated in the process in good faith and did not realise that she was being set up. She was shocked when she did not pass the PIP. She raised concerns during the process but did not feel heard. She did not formally challenge the outcome. Relations with her line manager started to decline. She was excluded from socialising with the team. The work culture changed. She was treated harshly.

In January 2022, the Respondent referred the Complainant to occupational health on her return from sick leave, despite submitting her own doctor's certificate. The occupational health doctor identified her hearing as a medical condition and asked her about wearing a cochlear implant. The Complainant does not have a medical condition. A cochlear implant is a choice, not a medical necessity. She was asked inappropriate questions about the contraceptive pill and whether she was a member of a trade union. She was extremely upset about the assumption of ableism and humiliated at the questions posed.

In 2022, the Complainant was placed on a second PIP. Again, IT issues were not resolved in a timely manner. She realised she was being set up to fail. She did not accept the PIP process.

The Complainant lodged an equality complaint to the WRC on 30 January 2023. The following day she received notification of redundancy. It was a sham designed to get her out of the business.

During the consultation process, the Complainant challenged the Matrix scores. Unlike her colleagues, she had prior experience in financial services. She should have been awarded credits for her qualifications. None of her colleagues had a disability. In the Complainant’s view, the Respondent wanted to get rid of her, as she was seen as being different. She did not formally appeal the redundancy outcome. HR failed to provide her with any alternative roles that could be adjusted with reasonable accommodation.

Under cross examination, the Complainant denied changing her story when she stated in a letter addressed to the Labour Court dated 9 January 2024 that she was placed at risk of redundancy in retaliation for lodging a complaint to the WRC on 30 January 2023. She said she experienced retaliation for other issues and was not abandoning her conspiracy theory relating to performance issues.

When asked how the WRC had notified the Respondent about proceedings lodged the day before the Respondent placed the Complainant at risk of redundancy on 31 January 2023, the Complainant said that the WRC were part of the conspiracy and that she could not rule the possibility of inside information from the WRC.

When asked about her assertion that the Respondent placed her at risk of redundancy because she queried who regulated the occupation health provider, the Complainant said that it was all part of a conspiracy to get her out. The Complainant agreed that she had insisted on attending Doctor “A” and that the Respondent changed occupational health provider to facilitate her request. When asked how the Respondent was aware of specific questions put to the Complainant during the medical assessment if they were not recorded in the medical report, she said that the health provider reported back to the Respondent. The medical report put her at a great disadvantage, as it incorrectly stated that she had a medical issue which was discriminatory. She accepted that she never raised any issues about the assessment or report with the Respondent. When asked how it was credible that the doctor’s report fed into the redundancy process, the Complainant said the Respondent was aware that she had shingles.

The Complainant accepted that she did not make a protected disclosure to the Respondent, as alleged.

When asked how the November 2021 interview process fed into the redundancy process, the Complainant said the Respondent knew that it failed to provide reasonable accommodation at the interview. She accepted that she agreed to the HR person attending the meeting by Zoom. She said gave feedback that the interview was not deaf friendly.

The Complainant disputed that her 2020 rating was ‘off-track’. She did not recall an e-mail dated 29 January 2021 setting out issues with her work performance. She accepted that her line manager sent her emails suggesting proactive measures to improve her performance but felt that she did not need the assistance or help. She accepted that she signed up to a PIP in 2021. She thought it was a good idea and was always interested in training and self-development. She agreed that she did not challenge her end of year performance rating. She accepted that her performance scores for 2021 was “off track”.

The Complainant said she challenged her ‘performance ratings’ scores during the consultation process. She also challenged her ‘qualification’ score, as she should have been awarded credits for her studies. She did not accept that the QFA qualification was most relevant for her role. She accepted that she received a higher score for ‘experience’ than her colleagues. In her view, the matrix scores were a sham.

The Complainant accepted that she was provided with a link to available roles within the organisation. She did not request reasonable accommodation to carry out those roles, as HR was aware of her disability. She did not accept the ex-gratia package offered, as she would have to drop her equality complaint. She did not avail of the outplacement services offered. She took legal advice on 16 March before her employment ended in March 2023

7. The Relevant Law

Section 6 of the Unfair Dismissals Act sets out the following:

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(3) Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—

• (a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or

(b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure,

then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

• (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

• (b) the redundancy of the employee, and
• (c) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so —

• (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and
• (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.

Section 7(2) of the Redundancy Payments Act 1967 as amended provides:

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b)the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

• (c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or
• (d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or
• (e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.”

8. Deliberations

The dismissal of an employee is deemed not to be unfair where it results wholly or mainly from a redundancy. The Court must first determine whether a genuine redundancy arose and, if so, whether that redundancy was the main reason for the termination of the Complainant’s employment. The Complainant contends that the redundancy was a sham designed to oust her from the company. The burden of proof rests with the Respondent to establish that in the circumstances of this case the dismissal was fair.

Did a genuine redundancy situation exist?

Ms O’Dowd gave evidence that the Share Scheme team in which the Complainant worked was placed under review and a business decision made to offshore certain aspects of the work undertaken by that team to a support function based in Pune, India. As a result, less staff were needed on the team in Dublin. While the Complainant contends that the redundancy process was a ‘sham’, she did not challenge the fact that data entry aspects of administration work in the team where she worked as was off shored to another part of the business in India.

An employer is entitled to restructure its business and carry out that business in a different way.  Having regard to the evidence proffered, the Court finds that a business decision to offshore some administration tasks to India gave rise to a reduced need for administrative staff in Dublin which led to a genuine redundancy situation as provided for at Section 7(2) of the Redundancy Payments Act 1967.

Was there a fair selection process?

The Complainant contends that she was unfairly selected for redundancy, in circumstances where her three team colleagues continued working in the team. The Court must consider whether the selection criteria used were fair or whether they were used as a cloak to target the Complainant, as she alleged.

The Court heard evidence that an established selection process is utilised in the company which involves the use of standard matrix by reference to three set criteria – (i) performance history over the previous three years (50%), (ii) relevant educational qualifications for the role (25%) and (ii) experience /length of service (25%).

The Complainant was one of four colleagues in a team carrying out the same or similar duties. The Court heard that matrix was applied to determine which of the four members of the team was to be placed ‘at risk’ of redundancy. As the matrix is not generally available to staff, team members were unaware that the scoring was in progress.

Ms O'Dowd’s evidence was that the established practice in the company is to implement compulsory redundancies which she said creates less anxiety and stress than putting a wider group at risk. As the Complainant scored the lowest overall score, she was informed that her role was ‘at risk’ of redundancy.

Ms O’Dowd gave a cogent explanation why a voluntary severance package was not opened to the wider team and why one individual in the team was placed ‘at risk’ of redundancy.  It is not the role of the Court to decide whether it would have been it fairer to act in some other way; the sole question to decide is whether the dismissal lay within the range of conduct which a reasonable employer could have adopted. The Court is satisfied that, having regard to the circumstance, it was reasonable to place the lowest scoring individual ‘at risk’ of redundancy.

In the Court’s view, the matrix criteria used were objectively impartial and fair. While the Complainant may have wanted a different selection process, it was reasonable for the Respondent to use a matrix with set criteria as was the customary practice in the company. Based on the evidence submitted, the Court concludes that the matrix used was well-established tool used by the Respondent in redundancy selection, and it was not orchestrated with the express purpose of selecting the Complainant’s role for redundancy.

The Consultation Process

The Complainant expressed a preference to engage in the consultation process via writing rather than face-to-face meetings. The Respondent contends that the consultation process was not a fait accompli and went on for an extended period, during which time matters raised by the Complainant were addressed. Extensive correspondence from the consultation process was opened to the Court. The Complainant raised no issues with the conduct of the consultation process per se; however, she challenged the matrix scores that led to her selection for redundancy.

The Complainant challenged her performance ratings and strongly articulated the view that her performance ratings were orchestrated over a three-year period to oust her from the company.  While she disputed her ‘off track’ rating in 2021, the Court found her evidence on that matter was simply not credible given the clear documentary evidence supporting the Respondent’s position. The Complainant provided no documentary evidence to support her assertions that she challenged her performance ratings with her line manager. She accepted that she never formally challenged the ratings or lodged a formal grievance in relation to the at the relevant time. The Court notes that the matrix weighting attached to performance ratings had decreased from 60% to 50%, which worked in the Complainant’s favour. Considering all the above, the Court concludes that the matrix score applied for the Complainant’s performance ratings was fair and reasonable.

The Complainant challenged her ‘qualifications’ score as she was of the view that she should have been awarded additional credits for undertaking further studies. The Court notes that the Respondent deemed the Qualified Financial Advisor (QFA) qualification to be the most relevant qualification for the role. In the Court’s view it is a matter for the Respondent to determine what qualifications are relevant to a role. Accordingly, the Court concludes that the matrix score applied for the Complainant’s ‘qualifications’ scores was fair and reasonable.

The Court notes that the Complainant was awarded a higher score for ‘experience’ than her colleagues. The Court accepts the objective reasoning set out by the Respondent for the scores awarded to the Complainant. Accordingly, the Court concludes that the overall matrix score applied to the Complainant was fair and reasonable.

The Court notes that the timeline was extended and that all issues raised by the Complainant were addressed. Having regards to the evidence tendered, the Court concludes that the overall consultation process was conducted in a fair and reasonable manner.

Was an offer made of suitable alternative work?

In a redundancy situation, there is an obligation on an employer to look for an alternative to redundancy. Ms O’Dowd’s evidence was that the company looks at alternatives to redundancies, through natural attrition or expiry of fixed term contracts during the consultation process. Other opportunities In the business are shared with impacted employees. If no opportunities are available, employees are directed to online vacancies and the talent acquisition team. If nothing is available internally, outplacement services and an ex-gratia payment are provided.

At the hearing, the Complainant agreed that there were no suitable roles available to her within the company at the time of her redundancy. The Court is of the view that efforts made by the Respondent to help the Complainant secure alternative employment outside of the company, through the provision of out placement services were adequate. It is unfortunate that the Complainant did not avail of the outplacement supports offered to her.

The Conspiracy Theory

The Complainant placed much emphasis on what her representative termed as a ‘conspiracy theory’ to oust her from the company. While the Complainant asserts that she was targeted by the Respondent after attending an interview in November 2021, the Court found no evidence to support that assertion.

The Complainant contends that she was subject to a sham performance improvement process from the end of 2021 onwards. The Court notes from extensive correspondence open to it that the Complainant was articulate and assertive when raising matters during her employment, yet by her own evidence she failed to formalise a grievance and or challenge her performance ratings.

The Complainant took issue with the classification of her disability in a 2022 Occupational Health report and gave compelling evidence about how extremely offensive she found questions asked by an occupational health physician during the medical assessment that fed into that report. The Court notes that the report was submitted to the employer 12-months before the commencement of the redundancy process and found no evidence to support the Complainant’s assertion that the report findings fed into the redundancy process in any way.

While the Complainant referenced the making of protected disclosures relating to her employment, she accepted in evidence that she never made a protected disclosures to the Respondent about any matters relating to her employment.

The Complainant contends that she was placed ‘at risk’ of redundancy on 31 January 2023 in retaliation for instigating WRC proceedings the previous day, 30 January 2023. While she contends the WRC was complicit in informing the Respondent about the complaint, no evidence was presented to the Court that the WRC deviated from their normal notification procedures, such that the Respondent could have been aware of the complaint when it placed the Respondent ‘at risk’ 24 hours later.

In the view of the Court, the Complainant's conspiracy theory does not stand up to scrutiny. The Court found the Complainant’s testimony to be inconsistent and at times incredible. She declined to answer many questions put to her in cross-examination, and when she did, the answers were frequently evasive or deliberately obtuse. Having regard to the evidence tendered and submission made, the Court find no basis to support the contention that the Respondent was engaged in a concerted effort to oust her from the company.

Having regard to the evidence, the Court is satisfied that in circumstances where data entry work was offshored to another location a genuine redundancy situation arose, as provided at section 7(2)(b) of the Redundancy Payments Act 1967. The Respondent has established to the satisfaction of the Court that the redundancy was impersonal. The Court is also satisfied that the Respondent implemented a fair selection process for redundancy.

Having regard to all the circumstances of this case, the Court is of the view that the matters identified by the Complainant did not render the dismissal to be unfair.  As a result, the Court is of the view that the termination of the Complainant’s employment by reason of redundancy was not unfair.

In the Court’s judgment, the Respondent followed a substantially fair and transparent selection process.  Based on the evidence tendered, the Court finds that the selection of the Complainant for redundancy does not render the Complainant’s termination of employment unfair.

9. Finding

For the reasons outlined above, the Court finds that the Complainant’s dismissal by reason of redundancy was not unfair. The decision of the Adjudication Officer is upheld. The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
TH	______________________
5 January 2026	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Therese Hickey, Court Secretary.