Complainant

Respondent

Parties

Tom Keane

Acc Loan Management Dac T/a Acc Loan Management And/or Acclm

Representatives

Ms Mary Paula Guinness, B.L., instructed by O'Mara Geraghty McCourt

Paul Rochford IBEC

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-00007015-001

15/09/2016

The complainant lodged a complaint against the respondent, alleging discrimination on the ground of age in terms of being less favourably treated with access to a redundancy package, on 15 September 2016. The first hearing of the complaint was scheduled for 20 April 2017.   However, due to various circumstances, several adjournments became necessary. Accordingly, the matter came to hearing on 8 January 2018.

This case is one of two cases which the complainant brought, which are both financial service providers. The evidence summarised in this decision was adduced at a hearing in which representatives of both companies were present. A transfer of undertaking took place between these companies, and the business to whom the within respondent transferred operations effected a considerable number of voluntary redundancies, for whom the complainant was not selected. The complainant’s main allegation against the within respondent was that it limited the budget for the redundancy programme and that the complainant, who would have been due a large pay-out due to his long service, lost out on his redundancy because it would have been too expensive.

The respondent maintains that since all its staff transferred to the transferee on 1 March 2016, and all redundancies were effected by the transferee after the transfer date, it has no legal liability for the complainant’s complaint, and that the case should be dismissed.

The complainant accepts that all redundancies were implemented after the transfer to the transferee. Furthermore, he does not seek to allege that anyone in the respondent business sought to influence the staff of the transferee company in any way against him.   As regards the financial aspect which the complainant alleges, the respondent helpfully assisted with information in relation to the redundancy programme.   Essentially, the transferee company implemented the redundancy programme, including making decisions on whose redundancy application to accept, and was reimbursed for the cost of the programme by the respondent.  

It is clear from the evidence I heard on this case, and which was not disputed between the parties, that the complainant was not an employee of the respondent by the time the redundancy programme was planned and implemented.   This fact alone makes the complaint misconceived, since the Acts stipulate that an employment relationship needs to exist between the parties at the time the conduct complained of occurred.   The provisions of Section 8 of the Acts, which define discrimination, read in conjunction with the definitions set out in Section 2, establish this clearly. I should add here that the transferee company did not dispute these facts or its own potential legal liability towards the complainant, which is subject to a separate complaint.

It is further a well-established principle in equality law that to investigate alleged discriminatory conduct, it is necessary to examine the actions of the relevant decision-maker(s). In the cases on hand, I am satisfied that all decision-makers were connected to the transferee and that the within respondent had no hand, act, or part in this process. I already noted that the complainant accepts this.

Last, and solely for the avoidance of doubt: Even if a limited budget did exist for the redundancy programme to be financed – something the complainant could give only rather vague hearsay evidence about and which both respondents disputed – an obligation on the relevant decision makers would still exist to ensure there was no discrimination in terms of access to the programme.

A claim is misconceived when it is incorrectly based in law. In Keane v. Minister for Justice [1994 3IR 347], Lynch J found that the Minister had no statutory power to relieve Leitrim County Council of its duty to provide courthouse accommodation in Carrick-on-Shannon and that her direction to the council was therefore “wholly misconceived and invalid”.

I am satisfied that the within complaint similarly falls within the parameters of misconceived jurisdiction, both to the lack of an employment relationship between the parties at the material time, due to the previously effected transfer of undertaking, and due to lack of involvement of the respondent in any decision-making regarding the complainant’s access to the redundancy programme, as accepted by all sides.

I find that the within complaint is misconceived in law within the meaning of S. 77A of the Employment Equality Acts, 1998-2015, and dismiss it accordingly.

Discrimination – age – access to redundancy programme – transfer of undertaking – employment relationship did not exist – respondent not decision-maker – misconceived.