DEC-E2015-006

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

Decision DEC – E2015 – 006

PARTIES

Ms Geraldine Suffin

-v-

Tesco Ireland Ltd. (represented by IBEC)

File Reference: EE/2012/124

Date of Issue: 18th February 2015

Keywords: S. 6 – Disability – S. 8 – discriminatory treatment – whether voluntary severance agreement can avail respondent who has no awareness of a potential complaint - Sunday Independent Newspapers v. Stephen Kinsella and Luke Bradley – P.M.P.A. v. Keenan – no evidence of pressure on complainant – reasonable expectation on the part of an employer that voluntary severance brings finality to an employment relationship – no jurisdiction.

1. Claim

1.1. The case concerns a claim by Ms Geraldine Suffin that Tesco Ireland Ltd discriminated against her on the ground of disability contrary to Section 6(2)(g) of the Employment Equality Acts 1998 to 2011, in terms of access to employment, promotion, failure to provide reasonable accommodation and discriminatory dismissal.

1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 21 February 2012. A submission was received from the complainant on 7 August 2014. A submission was received from the respondent on 22 December 2014. On 5 December 2014, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 8 January 2015. Additional evidence was requested from the complainant on 29 December 2014, and was presented at the hearing.

2. Summary of the Complainant’s Written Submission

2.1. The complainant submits that her disability is Lupus. She submits that she worked in the café in the respondent store in Ardkeen. When the question of a transfer from the café arose, she was informed that she would have to work on the shop floor. She also states that she had a consultation around this time with her consultant dermatologist, who she says felt that due to the heat emitted by the café machinery, the position was not ideal for her condition. According to the complainant, the consultant offered to write a letter to the respondent’s management, but she responded that she wanted to effect a transfer on her own first because she did not want to be “marked as special”.

2.2. The complainant states that she applied for various positions in the respondent store but was unsuccessful. She further states that she then applied for a position in the respondent’s petrol station, which was attached to the store. According to the complainant, the interviewer made reference to her condition by asking whether the complainant would be able to do the physical work which arose in this position, which the complainant affirmed she would. The complainant was not successful in her application for the position. When the complainant later inquired with her interviewer as to whether her disability had played a role, the interviewer denied this.

2.3. In respect of her dismissal, the complainant states that she received a 30-day notice that the café was coming under new management, and that there were no position in the Ardkeen store or another respondent store and that she was therefore made redundant. This happened on 12 December 2011. It must be noted that the complainant herself does not specifically link her redundancy to her disability in her submission.

3. Summary of the Respondent’s Written Submission

3.1. The respondent denies discriminating the complainant as alleged or at all. It submits as a preliminary point that the redundancy payment which the complainant received included, according to the written redundancy agreement, settlement of all claims against the respondent. The respondent is citing Sunday Independent Newspapers v. Stephen Kinsella and Luke Bradley, HC 2008, E.L.R. 53, in support of this position.

3.2. On the substantive points, the respondent submits that it employed the complainant as a General Assistant (GA) at its store in Ardkeen. The complainant commenced her employment in December 2000 and was at all times employed in the café.

3.3. In December 2011, the café function was outsourced to a major catering firm, and the café staff was transferred under a Transfer of Undertaking. The complainant elected not to transfer and accepted voluntary redundancy instead. Her ex-gratia redundancy payment was about €13,000. The respondent further notes that the complainant declined a role on the shop floor.

3.4. The respondent notes that as the complainant was in fact employed by it, there is no case for access to employment. It further notes that there is no question of access to promotion, as all the roles the complainant applied for would have been lateral transfers.

3.5. In terms of the complainant’s complaint of failure to provide reasonable accommodation, the respondent states that the complainant worked in the café role for 11 years without any need for such accommodation.

3.6. With regard to the interview for the role at the petrol station, the respondent submits that this role, too, was a General Assistant role. It had a physical component, in that the products for sale in the station had to be re-stocked, which was done by roll-cage from the main store. The role also required familiarity with legislation, such as the one regulation the over-the-counter sales of tobacco products, and the restrictions on the sale of hydrocarbon products. The respondent states that the complainant was one of three applicants for the position. According to the respondent, the interviewer accepted the complainant’s assertion that she would master the physical demands of the role. The respondent states that the role went to another applicant, who had up-skilled themselves on significant aspects of the petrol station role, such as PDA and till work/money handling, and that this level of prior-to-interview commitment was the distinguishing factor in the selection outcome.

4. Conclusions of the Equality Officer

4.1. The preliminary issue in this case is whether the complainant’s acceptance of redundancy precludes her from pursuing a complaint in this forum. The main issue for decision in this case is whether the complainant was discriminated against, and discriminatorily dismissed within the meaning of the Acts.

4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.

4.3. In coming to my decision, I have considered all oral and written evidence presented to me by the parties. I also wish to note that the complainant expressly waived her right to anonymity with regard to the published decision, after being carefully informed by myself what this might entail for her privacy.

4.4. At the outset of the hearing of the complaint, the representative of the respondent asked me whether the Tribunal would make a preliminary decision during the hearing of the complaint, on the respondent’s application that the Tribunal had no jurisdiction in this matter following the acceptance of a redundancy package by the complainant, as outlined in paragraph 3.1 above. I declined on the grounds that the matter did appear to me to be sufficiently obvious and clearly defined to make such a decision, and that I wished to hear all evidence before considering the application. On this basis, the hearing proceeded.

4.5. The complainant provided written confirmation, in the form of a number of letters from specialist physicians, of her disability, which is Lupus. I am therefore satisfied that the complainant has standing to bring a complaint under the Acts. The respondent acknowledged that it did have knowledge of her disability from 2009 onwards.

4.6. With regard to her complaint of discriminatory dismissal, the complainant made it clear in response to a question from me, that her disability played no role, and was not mentioned, in the process of redundancy being offered to her. She specified that she was aware that she could transfer to the new employer as part of the café staff, or else accept redundancy. She stated that she brought the complaint because she wanted to continue to work for the respondent.

4.7. This might well be the case, but I am satisfied from the complainant’s own evidence that as her disability was no factor in the respondent’s offer of voluntary redundancy – for example, that she might have been selected for, or been put under some sort of pressure to accept, such an offer on account of her disability. The respondent’s offer of, and the complainant’s acceptance, of voluntary redundancy was not discriminatory within the meaning of the Acts, and accordingly, her complaint of discriminatory dismissal must fail.

4.8. It is further important to note that no case for access to employment can possibly exist as the complainant was in fact an employee of the respondent’s for 11 years, and it is from this employment that the case on hand has arisen. The complainant also clarified in her evidence that the positions she applied for with the respondent, unsuccessfully, were not promotions, but rather lateral transfers. In light of the fact that the complainant described those situations, in particular her application to work at the respondent’s petrol station, quite clearly in her submission and that the respondent is therefore not prejudiced, and that less favourable treatment with regard to transfers is covered in S. 8(6)(c) of the Acts, I am willing to accept this as a valid complaint. This is especially so in the light of the fact that the complainant is not represented. In terms of the actual dispute, there was conflicting evidence between the parties as to whether the complainant’s disability was mentioned during her interview for the position.

4.9. Finally, the complainant confirmed that the only reasonable accommodation she ever sought from the respondent was wearing a hair net instead of a hat supplied with her uniform for her café duties, and that this was granted. The complainant made it very clear in her evidence that she felt wholly capable of carrying out any duties she might be asked to do in her General Assistant grade. She also emphasised that her disability had not caused her any sick absences. Accordingly, in the complainant’s own evidence, there is no valid case for lack of reasonable accommodation.

4.10. The question is therefore, whether the terms of the voluntary redundancy agreement can avail the respondent for the one remaining complaint, i.e. less favourable treatment in relation to the transfer to petrol station duties for which the complainant applied and where she was unsuccessful, as outlined in paragraph 4.8 above, and which is contested between the parties. These events took place in August 2011, some four months before the complainant accepted voluntary redundancy from the respondent. On 9 December 2011, the complainant and her manager signed a document titled “Pro Forma Ardkeen Café Canteen Proposals 2011”, which offered her two options:

“Option 1:

Transfer to [new company] including the following:

Existing terms and conditions of employment transfer (excl. pension)

Christmas bonus arrangements pre-2006 agreement will apply from Christmas 2012

A good will payment of €2000 for loss of Privilegecard and SAYE.

Option 2:

Voluntary redundancy package of 5 weeks per year of service (exact service)

Inclusive of all statutory entitlements and a termination date of 12th December 2011.”

The box next to “Option 2” is clearly ticked.

4.11. Three days later, on 12 December 2011, the complainant signed her redundancy agreement. The agreement letter states:

Dear Miss Suffin,

Following our recent discussions, I wish to confirm notice of termination of your employment by Tesco Ireland Limited (“the Company”) effective at close of business on 12th December 2011.

On the termination date you will be furnished with the following items subject to the terms and conditions contained in this letter:

a) RP50 and RP6 form

b) The Company agrees to pay to you an amount of €22,311.48 (“the Settlement Sum”) inclusive of Statutory Redundancy of €9,329.15.

You shall return two RP50s and RP6 forms to me with your signature on them.

1) These amounts shall constitute full and final settlement of all and any claims, which you have or may have against the Company or any member, officer, servant or agent of the Company or any subsidiary of the Company, and whether arising under statute, contract, tort, or common law or on foot or this or any other agreement with the Company or howsoever otherwise arising out of your employment of the termination of your employment with the Company. You are advised that you have a right to seek legal advice prior to signing this settlement letter if you wish to and if you need help to understand the full terms and implications of this settlement.

2) You shall return all Company property or papers to the Company on or before the termination date.

3) You will not now or in the future (unless authorised by the Company) use or disclose in any way, either for your own benefit or for the benefit of any other person or body, any information concerning the affairs of the Company and its subsidiaries, (including but not limited, the terms of this Agreement) which are not public knowledge save by compulsion of the law.

4) You agree not to make, or cause to be made, any statement or communication (whether written or oral) that disparages or reflects negatively on the Company.

This agreement is subject to you accepting all of the terms set out above and signing your acceptance of this agreement where indicated below.

On behalf of the Company I would like to thank you for your loyal service to the Company and wish you every success in the years ahead.

Signed [Manager].

Below this agreement, on the same page, is a section called “Acknowledgement”, which states as follows:

I, Geraldine Suffin hereby acknowledge receipt of the above letter. I confirm that I have considered its contents and I fully understand its terms and effect. Having done so, I hereby accept its terms in full.

Signed [Complainant].

4.12. The Superior Courts have sought to address the issue of a worker bringing proceedings after signing an agreement similar to the one quoted above in various cases, the most important ones being Sunday Independent Newspapers v. Stephen Kinsella and Luke Bradley, HC 2008, E.L.R. 53, which was opened to the Tribunal by the respondent, and P.M.P.A. v. Keenan [1985] I.L.R.M. 173. Neither case is, in terms of the facts, fully on all fours with the case on hand. One important distinction is that both the Sunday Independent case and the P.M.P.A. case are concerned with the severance sums paid – what is at issue in the Sunday Independent case is an alleged less favourable treatment in terms of how the severance money was calculated, whereas the P.M.P.A. case concerned an issue of equal pay which arose some time prior to the severance situation. Similarly, in the Equality Tribunal decision DEC-E2011-083, Five Named Complainants v. Hospira Ltd, it was the severance sum itself which was in dispute between the parties even before the agreement was concluded.

4.13. Carroll J, in the P.M.P.A. case, held that it can be lawful to compromise a legal claim for equal pay, if such “a claim for arrears of equal pay is supported by consideration (e.g. additional benefits to which an individual would not otherwise be entitled”. In the case on hand, she held that this was not the case and that therefore, the original complainants were entitled to succeed. It is important to note that the issue on hand here was equal pay, which to pay the appellant employer had been legally obliged to do since 1975, and that this was known to both parties when the settlement agreement was drawn up.

4.14. In the Sunday Independent Newspapers case the original complainants, Mr Kinsella and Mr Bradley, claimed that they, being fixed-term workers, were less favourably treated than permanent employees with regard to a severance package.

4.15. The Sunday Independent Newspapers case is closer to the case on hand than the P.M.P.A case, which Smyth J distinguished with the following words from Sunday Independent Newspapers:

“[I]n my judgement that case is clearly distinguishable from the instant case. In Keenan’s case there was no evidence that the defendant’s claim was included in the settlement which covered their claims. In the instant case the very claim made subsequent to the severance agreement was in fact made before the severance agreement was arrived at and signed and its all claims provision clearly states such to be in the context of severally enumerated Acts and “all or any employment legislation”. [Emphasis added]

4.16. In the case on hand, I find that the complainant must have been aware that she might have a discrimination complaint against the respondent from August 2011, when her disability was allegedly mentioned when she interviewed for the petrol station transfer (which the respondent denies); however, the respondent, at the time of the conclusion of the severance agreement, would not have been aware of such a complaint, as it was only filed with the Tribunal on 21 February 2012, some three months later. In other words, it would have been up to the complainant to weigh the chances of success of a potential complaint against the respondent under the Employment Equality Acts against the acceptance of the severance agreement on the terms and conditions set out above. It is also clear that the complainant had three days – or to be precise, a weekend, as 9 December 2011 was a Friday and 12 December 2011 was a Monday – to consider between her initial indication on the “Pro Forma Ardkeen Café Canteen Proposals 2011” cited in paragraph 4.10 above whether she wished to go through with her choice of voluntary redundancy, or at least, whether she wanted to request additional time from the respondent to avail of legal advice. At the hearing of the complaint, the complainant appeared as an intelligent and assertive witness in her own case, who in my estimation would have been well able to make such a request of the respondent.

4.17. It is further important to note again that the event complained about remains a matter of dispute and not an accepted fact, such as the pay shortfall which P.M.P.A hoped to contract out of by way of the severance agreement which Carroll J. held to be insufficient. In other words, P.M.P.A knew, by the time the agreement was negotiated, that they had underpaid certain female staff in contravention of their legal obligations. The situation in the case on hand is quite different in that the respondent became only aware of the complainant’s complaint after the severance agreement was concluded, and the sum paid is not in consideration for something the respondent would have accepted responsibility for.

4.18. Finally, I note that the severance agreement entailed a recommendation to the complainant to seek legal advice in case she was not clear about the meaning of any of its terms. The complainant confirmed this with her signature. No evidence was adduced before me that the complainant sought additional time from the respondent to obtain legal advice in respect of the agreement and that the respondent denied her such additional time. In fact, the complainant did not allege that she was in any way pressurised in terms of the agreement, and stated in evidence that she availed of the severance offer because her preferred employment situation, to continue in employment with the respondent, was not on offer. While I note that the severance agreement does not enumerate the specific statutes which are meant to be covered by it, I am satisfied that the wording is comprehensive and that this general fact should also be obvious to a layperson.

4.19. I am also mindful that in situations where an employer contracts voluntary, and financially enhanced, severance terms with a worker, there is a reasonable expectation on the side of the employer that the consideration paid will end the employment relationship in a conclusive manner and prevent situations such as the one in the case on hand from arising. This was also expressed by Smyth J when he said in the Sunday Independent case: “In the instant case the agreement is expressly stated to be in full and final settlement and that means what it says.”

4.20. Based on the analysis of the facts outlined above, in terms of the events which led to the conclusion of the voluntary severance agreement between the parties, and following Sunday Independent Newspapers v. Stephen Kinsella and Luke Bradley, HC 2008, E.L.R. 53, I find that the terms of the severance agreement avail the respondent with regard to the remaining issue which, based on the evidence provided, would have fallen to be adjudicated on, and that I therefore lack jurisdiction to do so.

5. Decision

5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the respondent did not discriminate against the complainant, on the ground of her disability, in terms of access to employment, access to promotion, provision of reasonable accommodation or discriminatory dismissal, and that the voluntary severance agreement concluded between the parties on 12 December 2011 means that I do not have jurisdiction to investigate her complaint of less favourable treatment with regard to an internal transfer on the ground of her disability.

______________________

Stephen Bonnlander

Equality Officer

18 February 2015