EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Brendan McDonnell – claimant UD799/2013
Against
Barclays Insurance Dublin T/A Barclays Assurance Dublin Limited – respondent
&
Barclays Insurance T/A Barclays Assurance Dublin Limited - respondent
&
Barclays Insurance Dublin Limited T/A Barclays Assurance Dublin Limited - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr M. Noone
Mr. S. O'Donnell
heard this claim at Dublin on 13th June 2014, 16th October 2014 and 17th October 2014
Representation:
_______________
Claimant(s): Mr Frank Drumm BL, instructed by:
Ms Fiona Roche
Roche & Co., Solicitors, 34 Vevay Road, Bray, Co. Wicklow
Respondent(s): Ms Rosemary Mallon BL, instructed by:
Ms Grace Gannon
Arthur Cox, Solicitors, Earlsfort Centre, Earlsfort Terrace, Dublin 2
The determination of the Tribunal was as follows:-
Summary of Respondent’s Evidence:
The Managing Director (MD) of the company gave evidence. He joined the company in February 2012 as deputy MD and chief risk assessment officer. He was appointed to MD on 15th November 2012. The company underwrites income protection schemes mainly distributed through the UK. The claimant was a production manager mainly involved in the production of reports. Redundancies have reduced the headcount from 40 in 2011 to 27 in 2014. Three other redundancies were made at the same time as the claimant’s. In 2010 the company sold four products but this had been reduced to one in 2012. The company is part of a larger group which wanted to close the product which the company underwrote as it had become loss making.
A HR executive communicated extensively via email with the claimant regarding applying to the income continuance scheme. The application form was to be completed by the company, the claimant and the claimant’s doctor. When the claimant had been on 6 months’ sick leave the company filled in its part and sent it to the claimant along with the GP form and consent for release of medical information. Part of the application included a claims assessor to visit the claimant’s house. The claimant expressed his alarm at the need for a claims assessor visit. The HR Executive explained that this was part of the insurance company’s assessment process and attached a copy of the salary protection plan.
There was much email correspondence between the claimant and the HR Executive. The HR Executive was informed by the insurance company that the claimant had refused to deal directly with them and instead had directed them to deal only with the respondent company. The claimant maintained throughout the correspondence that it was the company’s responsibility to access the income continuance plan. The HR executive explained that the company could not make the application on his behalf. The claimant invoked the grievance procedure.
The redundancy process involving the claimant commenced on 10th September 2012. All staff members were briefed. The claimant was contacted by phone by the Head of Operations. The presentation slides were sent to the claimant two days later. Roles at risk were identified and the consultation process would last for 30 days. Sick leave was not a consideration in selection. Alternative roles were proffered for application.
The claimant expressed an interest in two other roles; maternity cover for production manager role and data analyst. The production manager role was in sales and marketing and was a very different role to the claimant’s though it had close to the same name. The data analyst role was technically based and completely different to what the claimant did.
The claimant sought to invoke stage 3 of the grievance procedure. He complained that the medical information being sought by the third party insurance company was far in excess of what the respondent company sought at the commencement of his employment.
The Head of Operations contacted the claimant on 2nd October 2012 to inform him that his role would be made redundant on 22nd October 2012. He was informed of his right to appeal. He was also informed that two others had expressed an interest in the data analyst role and that he should confirm if he was applying. There would be an interview process.
The claimant wrote on 5th October 2012 to contend that he was contractually entitled to the income continuance plan. The company disputed this.
The claimant was invited to attend an interview for the data analyst role on 19th October 2012. He replied that he was unfit for interview and contended that he was entitled to income continuance.
The two other applicants for the data analyst role turned it down and therefore the claimant was offered the position without having interviewed for it. A new contract was sent to him. He was offered the same salary and his service was preserved. However the company’s pension policy had changed to a defined contribution scheme for all new entrants from 1st January 2012 and this became an issue for the claimant. The offer was made subject to the terms and conditions of the new contract. The claimant then contended that no new contract was required. The company replied that his old position was redundant and that he should return the contract by 8th November 2012 or the company would consider that he had refused the alternative position and the redundancy would proceed.
On 22nd November 2012 the Head of Operations informed the claimant that his employment would terminate on 22 December 2012. The claimant indicated that he would appeal through the grievance procedure. The company replied that it would be dealt with through the appeals procedure. The MD was to hear the appeal and understood that the redundancy was the only issue however it became more at the appeal and he decided to deal with the claimant’s issues through the grievance procedure. The MD had only been in his role for one month and had no previous sight of the claimant’s file.
The claimant’s issues were: the redundancy of his role, the withdrawal of the data analyst role, the contract for that role and the income protection scheme. The MD attended the meeting with the HR executive. The claimant declined to bring a representative. The MD listened to all the claimant’s grievances and afterwards investigated all of them. He believed that if true they were very serious. He reviewed the claimant’s file, correspondence, the income protections policy, the company handbook and the claimant’s contract of employment.
The MD found that the communication in regard to the withdrawal of the data analyst role was very clear. It was withdrawn because the contract was not signed. The claimant was given many opportunities and extensions. The claimant believed that his contract could be amended to suit the new position; however, the MD believed that it was the right of the company not the claimant to change the contract. Regarding the income protection scheme the MD felt that it was clear that there was a policy in place with a third party company and as such there would be claim forms to be filled in. The claimant worked for the respondent which was also in the insurance business. The claimant had a health insurance policy through the company which required him to claim directly from the third party insurance company. The MD was satisfied that he claimant was clearly informed that he had to fill in the forms. He was satisfied that the correspondence from the company was very fair and that the income protection scheme was not initiated because the claimant did not fill in the forms. The claimant’s grievances were not upheld. The MD issued a report in response. There were five employees in the production team when the MD started. There was only one employee in production at the time of the hearing.
Summary of Claimant’s Case:
The claimant went on sick leave from November 2011. A viral infection led to him developing liver problems. He contended that he had never refused to sign the salary protection application form. He wanted the company to confirm that it was the owner of the policy. This was the crux of the matter for him. He sought the policy document in May 2012 but did not receive it until October 2012. He passed a medical exam when he joined the company and so he did not see why a further assessment was needed later.
He contended that he should have been on the salary protection scheme by the time that the redundancy consultation period occurred and that the data analyst role should have been held open for him until he returned from sick leave. His current contract of employment allowed his employer to make changes to his contract which he believed was sufficient to allow him to take up the data analyst role without signing a new contract. The new contract changed his pension plan from a defined benefit plan to a defined contribution plan which represented a deterioration in his terms and conditions. At the hearing the respondent confirmed that all employees were changing to the new pension scheme by the end of 2012. The claimant was not informed of this when asked to sign the new contract.
Determination:
The Tribunal has carefully considered the evidence adduced in the course of the three days of oral evidence presented to it. The Tribunal has been asked to find the termination of the claimant’s employment to have been unfair and the burden of proof rests with the respondent to demonstrate that it has acted fairly and reasonably in all the circumstances.
The claimant commenced his employment with the respondent company in and around April of 2010. The claimant was employed as a product manager with the respondent company which was in the business of providing financial services and in particular underwrites income protection. The respondent’s parent company had been downsizing the Dublin office over the course of the 24 months immediately preceding the claimant’s termination of employment and the evidence heard was that the numbers of employees had reduced from 40 to 27 over this period of time.
In 2011 there was a collective redundancy situation in a sub office in Shannon and in Dublin several redundancies were made at that time too.
In November 2011 the claimant went on a protracted period of certified sick leave. The claimant described a very debilitating and exhausting viral infection which attacked his immune system and left him utterly spent of all energy. The claimant was largely housebound and was fortunate to have been getting paid his full salary by his employer. This continued remuneration was at the discretion of the employer (as provided in the Staff Handbook 3.7) and paid for a six month period between November 2011 and May 2012.
By May 2012 the respondent employer being satisfied that the claimant’s illness showed no sign of abating, sought to implement the salary protection plan which it had in place in respect of all its employees should they become unable to perform by reason of long term illness.
As part of the process for activating the income protection plan the respondent held with the third party insurance Group (AV) the respondent’s head of HR (CC) entered into correspondence with the claimant for the purpose of outlining the steps that would need to be taken and highlighting the obligations on him as the end beneficiary.
There followed a protracted period of correspondence between CC and the claimant concerning the appropriate level of engagement to be expected of the claimant. The claimant was clearly apprehensive at the fact that the claim being made under the terms of the insurance was (as he saw it) solely his responsibility. The claimant was anxious that the respondent (as policy holder) should have more of a role in the process. In his evidence the claimant indicated that he felt that he had been cast adrift by his employer and in his precarious state of ill-health he felt ill-equipped to make an adequate application for insurance protection.
None of the tasks being asked of the claimant were particularly onerous nor was there anything untoward in the assumption that the claimant was the person best placed to provide the details required. In addition the Tribunal must attribute to the claimant a better understanding of insurance than many people as he actually worked in the industry.
The claimant’s lack of engagement during this period of time is neither condoned nor understood by the Tribunal. The correspondence demonstrates an almost wilful refusal to engage with and understand the true need to facilitate a claim and whilst the correspondence also discloses a growing frustration on the part of CC there can be no doubt that she was anxious to get this matter dealt with expeditiously and successfully. In her email of the 3rd of September (some four months after the initial request to adopt the policy rules was made) CC indicates a willingness to host a meeting between the claimant and the home visit nurse on the respondent’s own premises if needs be.
It is noted by the Tribunal that the insurance policy forms were never completed and an application for indemnification was never made. The Tribunal cannot know whether the claim would have been successful and equally cannot know what the employer would have done had it been unsuccessful. Suffice to say that the employer appeared to this division of the Tribunal to have acted with fairness despite the frustrating attitude of the claimant. It is further noted that the claimant was on two-thirds of his basic salary up to the date of his dismissal.
The Tribunal finds the claimant’s reasoning to have been clouded and at times obdurate. His allegations of discrimination are ill-founded and inflammatory. However, as events subsequently unfolded and despite the long tranches of time given over in evidence to this long drawn out matter, the Tribunal finds that the engagement between employer and employee on the issue of income protection had no real bearing on the eventual termination of the employment herein.
The Tribunal certainly notes that it was regrettable that there was an exceptional delay in getting the ‘policy’ document to the claimant.
As previously indicated, the respondent workplace was in a state of flux and in particular a new round of redundancies was announced in and around September 2012. The claimant was advised that his role was coming into focus as the work he would normally carry out was now being outsourced and the requirement for the role of product manager was hugely reduced as the respondent no longer sold a large range of products and had in fact simply been operating an orderly wind down of all Irish operations for the last few years. The Tribunal absolutely accepts that the claimant’s position was made redundant.
As part of the restructuring process, the respondent listed a number of new roles available in consequence of the restructuring and the claimant was invited to apply for any of these roles as he might so wish (per letter dates 14th September 2012).
The Tribunal recognises that in re-structuring situations it is desirable that an employer in creating new positions should ask for applications for any newly created positions from its exiting workforce in advance of effecting a redundancy. This is certainly preferable to making people redundant on the one hand and then publicly advertising new roles and positions immediately afterwards.
The claimant identified the position of data analyst as being the job most appropriate to match his skillset. There was some conflicting evidence on the amount of up-skilling and training that would be required to make the claimant ready to take up this position and on balance the Tribunal tends to accept that the job was somewhat different to the claimant’s position which was being made redundant. In any event up to three people in the workplace had expressed an interest in the position and in the interests of fairness it was decided that all three applicants should be allowed to compete for the spot.
By the 18th of October 2012, the interest in the position of data analyst had fallen away and the claimant was in effect being told that the job was his which offer was confirmed on the 25th of October even though the claimant had not yet attended onsite meetings to discuss his suitability for the position. The letter of offer confirmed that this was a new role and that whilst the continuation of service would be preserved a contract of employment would be required to be signed.
Again, the claimant took considerable issue with his employer’s position and in particular to the fact that a new contract of employment was required for this position and he refused to sign this contract maintaining that the terms of his original contract of employment was sufficiently flexible in its wording to allow for this change of position/job description.
The Tribunal accepts that the claimant would have to have been disappointed that the defined benefit pension plan was being replaced by a defined contribution plan and it is understandable that he sought to preserve the terms and conditions of his previously held contract of employment wherein the defined benefit plan was articulated. This change was being effected for all employees.
However, the Tribunal is obliged to look at the realities of the situation and in particular, as all parties tended to agree the Tribunal must confirm that the claimant’s position was made redundant and it does not stretch what it is legally permissible for the Tribunal to assume that, arising out of that redundancy – the contract of employment attaching to that job was also made redundant.
The claimant had no entitlement to insist that his old contract of employment together with the terms and conditions contained therein could transfer seamlessly to the new position. The new position of data analyst was created in a post restructuring and redundancy era. Employees had the choice to take their redundancy or look for one of the newly created positions. The fact that the terms and conditions attaching to the new positions are in any way lesser in terms of their attractiveness is not relevant as the position is taken subject to these openly acknowledged terms and conditions. The claimant had the choice and in the end his actions led to the choice of refusing the position and being made redundant.
On the 22nd of November 2012 the claimant was notified that the termination of his employment by reason of redundancy was taking place. It is noted that the claimant was given copious opportunities to prevent this situation arising and that the employer was effectively forced to make a stand at the end of a protracted period of prevarication and obfuscation.
The Tribunal in all the circumstances finds that there was no unfair dismissal. The Tribunal would further note that the ongoing interaction between the parties after the redundancy had no bearing on the lawfulness of the termination of employment.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)