ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000916

Complaint for Resolution:

Date of Adjudication Hearing: 11/02/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, and Section 79 of the Employment Equality Act, 1998, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

With the exception of CA-00000577-001 all the above claims were withdrawn at the hearing.

For purposes of clarity, the respondent in this case is sometimes referred to also as the ‘Transferee’ in the context of the change in the complainant’s employer.

Complainant’s Submission and Presentation:

The complainant began employment with a previous entity in December 2004. Subsequently, by virtue of a transfer of undertaking, her employment transferred to another company (the transferor) in June 2013.

She commenced sick leave in December 2013.

In March 2014 she learned that the transferor was to be or was being taken over but received no communication in relation to this from either the transferor or transferee.

On March 27^th 2015 she had a meeting with the respondent who had been, and she understood still to be, her employer and a Director of the transferor and who said to her he thought she had either retired or was going to retire. She informed him that she had no intention of retiring and sought clarity around her continuing employment. She had been submitting regular medical certification about her condition and had no idea how her former employer thought she had retired or might be retiring.

This meeting happened on March 27^th, 2015 as it happens, but unbeknownst to the complainant a day after the transfer had actually taken place.

She instructed her solicitor to write to the, CEO and Chairman of the transferor requesting that he would provide clarity around her employment status. There was correspondence with the transferee on July 7^th, September 1^st and November 2^nd 2015.

The respondent’s solicitors replied on 27th May advising her of the transfer of undertakings and that she continued to be an employee albeit with the new entity, which had taken over the business by virtue of transfer of undertaking.

On 12th August, 2015 she received a letter from VHI to say that her VHI subscription had not been paid by the new employer which she says was is breach of her terms and conditions of employment. She raised this with her employer via her solicitor but no response was received. She believed this to be evidence of the termination of her employment

Given the lack of any response or acknowledgment of the solicitor’s correspondence by her new employer she concluded that was no longer an employee. Given her age and the fact that she was on sick leave at the time of the transfer, she believed she had been discriminated against on the grounds of her disability and her age.

She says that this act of discrimination, taken with the termination of payment of her VHI subscription, to which she was entitled on foot of a term in her contract of employment, brought her to the point where her contract of employment was terminated and she had no alternative but to resign.

The complainant also submits that no effort was made investigate the nature of her illness or to accommodate or facilitate the complainant’s disability through the introduction of appropriate measures to accommodate her disability.

Respondent’s Submission and Presentation:

The respondent says that if the discriminatory act complained of took place at the meeting on March 27^th, the person she met, a Director of the transferor company had no longer any authority as the transfer had been affected the previous day.

It also says that any complaints raised by the complainant have failed to meet the onus of proof required by the Employment Equality Act in that she has not established a comparator against whom she is alleging unfavourable treatment on the grounds claimed of age or disability or any evidence of less favourable treatment.

Regarding the interruption of the VHI payments the respondent says that this was an administrative error as a result of the Transfer of Undertakings.

It also says that the claim is out of time on the basis of the alleged acts at the meeting on March 27^th as the claim was submitted on November 2^nd.

The respondent also notes that the complainant failed to process any complaint through the company’s internal procedures and the first knowledge it had of a difficulty was correspondence from the complainant’s solicitor.

Findings and Conclusion

All complaints except that under the Employment Equality Acts were withdrawn at the hearing.

I have considered all relevant submissions, oral and written that were laid before me.

There is no doubt that the treatment of the complainant who was in poor health and who was sixty-nine years of age left a great deal to be desired. As one of only two employees of the transferor company it would not have taken great effort on the part of either entity, despite her being on sick leave, to advise her of developments in relation to the transfer of undertakings, provide her with whatever reassurances she required and was entitled to by law in respect of her continuing employment status.

It appears that her, as it turns out, former employer (the transferor) failed to openly disclose the true position about the change in ownership at the meeting with her in March. It is obvious that he was fully aware of the then current position and he had an obligation to advise her what was happening, and particularly when he became aware of her intention to remain in employment (if on continuing certified sick leave).

The lapsing of the VHI payments was entirely avoidable and should have been remedied much more quickly. It gave rise to understandable and unnecessary apprehension on the part of the complainant, especially having regard to her state of health.

However, under the terms of the Employment Equality Act the initial burden of proof falls on a complainant to establish a prima facie case of less favourable treatment on the grounds, in this case of her age and disability.

She based her case on six incidents; the failure to consult her regarding the transfer of her employment, the failure to consult her in general and the failure of the respondent to reply to the letters from her solicitors. The final three all relate to the VHI payments; their cancellation, the failure to reinstate them, and the respondent’s disregard for the consequences of their actions.

My views on these matters in general are set out above but I am required to adjudicate on them as breaches of the Employment Equality Act. The complainant failed to establish a prima facie case of less favourable treatment in respect of any of these matters and I find that they do not represent acts of discrimination or less favourable treatment on the basis of her age or disability.

On the matter of her treatment on the grounds of her disability at the point of transfer I find that the respondent ought to have proactively engaged with the complainant but its failure to do so was not an act of discrimination.

In respect of the termination of her employment there is a distinct lack of clarity about this and the correspondence from her solicitor said to affect her resignation is far from clear on this point. The resignation is to be inferred from the letter advising the respondent of the referral to the WRC.

The complainant failed to avail of any internal company channels to process her grievance.

In her submission it was stated that failure by the respondent to engage with the complainant made it clear that the respondent ‘had no intention of honouring her terms and conditions of employment’. The respondent made the point in reply that it had reservations about the involvement of solicitors in the case and the complainant might have been better advised to deal with her employers direct in the normal way.

I cannot agree with the conclusion reached by the complainant as set out above in the circumstances.

The first communication (from the complainant’s solicitor) was on September 1^st 2015. This asked the respondent to ‘formally confirm whether you regard our client to be an employee’ and to clarify the VHI payments matter. The respondent did not reply. It should at least have communicated with its employee at that stage, even if it had concerns about dealing with her solicitor.

By November 2^nd the solicitor wrote again and in this letter, according to its submission, offered the complainant’s resignation and advising the employer that various matters were being referred to the WRC.

To jump to the conclusion that the employer ‘had no intention of honouring her terms and conditions of employment’ on the basis of this delay and to ground a decision to resign on this basis was hazardous in the extreme and very poorly advised. This is especially the case as the respondent’s solicitors had written to the complainant’s solicitors on May 27^th 2015 stating;

‘Your client continues to be an employee albeit with the new entity [the current respondent]’.

In its response of July 7^th the complainant’s solicitor even referred to this commitment. It seems that any fresh uncertainty about the position flowed from the termination of the VHI payments and sought further confirmation as to her status, which in all the circumstances seems quite unnecessary when it had been given an unequivocal statement of the position only a few weeks earlier.

The complainant had an obligation to deal with her new employer and process any issues she had (for example in relation to the VHI) through the normal procedures and in person and should have been so advised to do.

There was no direct communication between the respondent and the employer, as might be expected and the November 2^nd 2015 letter was premature to say the least in terms of the operation of normal workplace procedures.

I cannot see that the point had been reached where the employer’s conduct had become so intolerable as to justify that significant step.

At that stage the employer had failed to respond to only one letter from a solicitor and had no direct communication from its employee of any description and had given a very clear statement of the position as outlined above.

No case was made out that she was treated less favourably on either of these grounds by reference to any other person. Therefore, I can find no basis to justify her resignation, if such it was by reference to the normal principles that are required in a case of constructive dismissal.

Accordingly her complaint must fail on these grounds.

Decision:

Section 41(4) 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(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Decision:

For the reasons set out above I dismiss the complaint.

Dated: 26th April 2016