Complainant

Respondent

Anonymised Parties

A Former Sales Manager

A Horse Products Sales Company

Representatives

McCartan & Burke Solicitors

Management Support Services (Ireland) Ltd

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00024339-001

19/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00024339-002

19/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00024339-003

19/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994

CA-00024339-004

19/12/2018

The complainant worked for the respondent from 12 January 2009 until 5 December 2018, as an International Sales and Commercial Development manager. On 19 December 2018 the complainant submitted the claims above. At the beginning of the first day of hearing she withdrew the complaint under section 6 of the Payment of Wages Act, 1991, CA-00024339-003. I heard the other three complaints over two days of hearing on 14 January and 17 February 2020.

The complainant submitted that she was discriminated against on the grounds of gender in relation to her conditions of employment. She says that from July 2017 her line manager made a number of comments relating to her gender and whether she intended to have children. She was also refused time off to attend a fertility clinic appointment. She felt she could not raise an internal complaint about these comments as the line manager was also a director and she was worried any complaint would affect her career. She also claimed there was no one in HR in 2017 to whom she could make a complaint.

At an evening meal following a training day in September 2018 she heard that the trainer made comments of a sexual nature about her. The HR Manager claimed she had dealt with the issue, but the complainant did not understand how she could without discussing the matter with her.

She raised the issues at a meeting to discuss her redundancy on 1 November 2019, when she also made a protected disclosure.

The respondent provided no evidence in relation to the claims made against the complainant’s line manager. Except, that they were unaware of these complainants before 1 November 2019, at which point they appointed an independent investigator. The complainant refused to meet him. In these circumstances they say the complainant was aware the respondent had an employee handbook which would have advised the complainant how to make a complaint. They also submit that there was always someone available to provide an HR service.

The respondent did not receive a complaint about the external trainer from the complainant. However, a complaint was made by another member of staff about the trainer’s behaviour on the evening referred to by the complainant. Following a discussion with the trainer his contract was terminated.

This is a claim of discrimination under the Employment Equality Acts on the grounds of gender. The complainant has given evidence of comments made by her manager and an external trainer which related to her gender. However, she did not raise a grievance with the respondent until 1 November 2018 when they appointed an external investigator. The complainant chose not to take part in the investigation. I conclude that the respondent took the appropriate measures when they were aware of the complaints and therefore, I find they did not discriminate against the complainant on the grounds of her gender.

The complainant informed the respondent she was pregnant on 31 October 2018. On 2 November she was asked to attend a Health and Safety assessment on 6 November 2018 but on 5 November she was told she was redundant. By being made redundant she lost her right to Maternity Benefit. She submits she was asked for a certificate confirming the pregnancy and giving the expected date of confinement, but this is not required until after 24 weeks of pregnancy.

The complainant submits there was a greater onus on the respondent to consult her when they knew she was pregnant; before making her redundant.

The respondent confirms they received an email on 31 October 2018 stating the complainant was pregnant. Previously, on 2 October 2018 they had advised her she was at risk of redundancy. At a meeting on 1 November the complainant was asked to provide confirmation of the expected date of confinement but she did not provide this. A number of attempts were made to meet the complainant between 2 and 31 October but this did not happen.

The respondent submits they did not contravene the Maternity Protection Act and the complainant has not cited any specific breach of the legislation.

The Maternity Protection Act gives a pregnant woman proception from termination of employment during “protective leave”. The complainant was not on protective leave before her employment was terminated.

There is no specific provision in the legislation requiring and employer to consult further with an employee regarding termination of employment when they are informed she is pregnant.

I therefore find the complaint under the Maternity Protection Act is not well founded.

The respondent submits the complainant’s employment was terminated on the sole ground of redundancy. The complaint form states the termination of employment arose when she made a protected disclosure. However, the complainant was advised her position was at risk of redundancy on 2 October 2018 and it was only at a further meeting on 1 November that the complainant made her potential alleged Protected Disclosure. This makes it clear there can be no causal relationship between the making of the disclosure and the redundancy.

In February 2018 the respondent decided to streamline the business. The plan included locating the Sales and Business Manager positions in their assigned regions. A number of redundancies were implemented during 2018. The complainant was on the first potential list but she was not included in the redundancies at that time. At the end of May the Executive Team reviewed the overall streamlining process and a list of 26 potential positions were identified as at risk of redundancy, including the complainant. 10 of the 26 were made redundant but the complainant was not included. A third review took place in August 2018 and a number of positions, including the complainant’s, were placed on a list of potential redundancies.

The complainant was invited to a meeting on 2 October 2018 to inform her that her position was at risk of redundancy. Following the meeting the complainant was issued with a letter confirming the discussion and inviting her to a consultation meeting on 5 October. The complainant postponed the meeting until she was due to return to work on 15 October. Then on 11 October the complainant’s representative wrote requesting an indefinite end to the redundancy process; they claimed the redundancy had been pre-determined and the process was a “charade and/or sham”. The respondent made 8 attempts to reschedule the consultation meeting. On 30 October the complainant informed the respondent she was pregnant.

A meeting was held on 1 November 2018 and the respondent made it clear the position was not redundant and the company was in the process of deciding what action it may take. The complainant raised a potential protected disclosure and 2 grievances at the meeting. The complainant was asked to supply a certificate from her doctor in relation to her pregnancy.

There was subsequent correspondence in relation to the potential protected disclosure and further requests for the certificate confirming the pregnancy and expected date of confinement. This was received on 5 November. On the same date the respondent wrote to the complainant confirming her position was to be made redundant and issuing her with one month’s notice and advising her the new Regional Management positions were available for her to consider.

The following day the complainant’s representative wrote alleging breaches of the Maternity Protection Act and her rights to natural justice in relation to the possible Protected Disclosure and grievances raised. Also, the complainant accepted an alternative position but referred to an incorrect position that had not been offered. The respondent replied on 12 November clarifying the position regarding alternative employment. On 13 November the complainant, through her representative accepted the position offered by the respondent but, although she would be working in France, insisted she would be paid through the Irish payroll and there would be no break in her service. The respondent wrote on 21 November wrote confirming the complainant’s acceptance of the role and that a proposed contract had been sent to their lawyers in France for review. Also, the respondent sought to arrange a meeting to arrange for the complainant to travel to France. The respondent wrote again on 27 November enclosing the updated contract, job specification and KPM information and a confidentiality agreement in relation to the new position. The letter attaching the documents stated: “Should you choose not to meet with me Thursday 28th November 2018 at 10am in order to make the further arrangements and sign the enclosed documents this will be taken as your rejection of this role and may be treated as your resignation from the company”. The complainant’s representative replied that the respondent sought to deprive the complainant of her rights under the Irish Maternity Protection Act by insisting on being employed under French law. On 29 November the respondent asked the complainant to review the contract and arrange a follow-up meeting on 30 November 2018. The respondent, through their representative confirmed the advice they had received that the complainant should be issued with a contract of employment with terms governed by French law. A follow up email was sent on 3 December requesting a response and gave the complainant 2 days to respond before the redundancy process would begin.

On 6 December the respondent wrote to the complainant confirming her notice period had expired on 5 December and as no signed contracts were in place the redundancy payment would be processed. It was also stated that an ex-gratia payment was still available. The complainant did not respond and referred her complainants to the WRC on 19 December 2018.

During this period there had been correspondence between the parties to look into the alleged Protected Disclosure and to investigate the grievances raised by the complainant.

The complainant submits that on 2 October 2018 she was called into a meeting with her manager and was unexpectedly joined by the Commercial Director and HR Manager. She was told of a reorganisation which meant that her role would no longer exist. She was not told of the specifics of the new regional organisation. She was not told of any role she could take on in the new structure. She was not told how her role was selected or the criteria used. It was clear to the complainant that the decision had been made and she was going to be dismissed under the guise of redundancy.

The complainant sought legal advice and a further meeting with the respondent took place on 1 November 2018. The day before the meeting the complainant advised the respondent she was pregnant. At the meeting the complainant raised grievances and made a protected disclosure. Despite her repeated requests the protected disclosure was not properly investigated. The respondent did not engage in meaningful consultation at this meeting. On 5 November the complainant received a letter confirming her role was being made redundant but saying the consultation period was not finished and she asked to consider three Regional Management positions that were being created. An hour after receiving the letter the IT manager took her laptop, phone, company credit card, key fob and access card, and she was told to leave the building.

The complainant accepted one of the positions that was based in France but she was not allowed to return to work. 3 weeks later she was sent a proposed contract for the new position but the terms and conditions were drastically different to her existing contract. Specifically, her new role was to be governed by French law and the complainant was to be removed from the Irish payroll. This meant she would lose her acquired Irish maternity benefits, which was very important to the complainant. The complainant sought more time to review the contract, as this would have to be done with the services of a French lawyer. She was not afforded this time and her contract was terminated on 6 December 2018.

The complainant says there was not a genuine redundancy and she was dismissed unfairly. She also submits there was a change in the Respondent’s attitude to her after she made the protected disclosure.

The complainant says she was earning a total of €85,000, being a basic salary of €70,000 and a sales related bonus of €15,000. She claims she suffered a loss of income from December 2018 to June 2019, which amounts to €78,000. She submitted evidence that she applied for a number of positions and is sure that her pregnancy was a factor in not being successful; until she started a new job in November 2019.

The issue for decision by me is whether or not the complainant was unfairly dismissed by the respondent company. Section 6 of the 1977 Act provides:

“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.

(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:

... (c ) the redundancy of the employee”

Redundancy for the purposes of the 1977 Act is defined with reference to section 7 of the Redundancy Payments Act, 1967;

“7(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”

 In the case of JVC Europe Ltd v Panisi [2011] IEHC 279, Charleton J stated;

“In all cases of dismissal, whether by reason of redundancy or for substantial grounds justifying dismissal, the burden of proof rests on the employer to demonstrate that the termination of employment came within a lawful reason. In cases of misconduct, a fair procedure must be followed whereby an employee is given an entitlement to explain what otherwise might amount to a finding of real seriousness against his or her character. In an unfair dismissal claim, where the answer is asserted to be redundancy, the employer bears the burden of establishing redundancy and of showing which kind of redundancy is apposite. Without that requirement, vagueness would replace the precision necessary to ensure the upholding of employee rights. Redundancy is impersonal. Instead, it must result from, as section 7(2) of the Redundancy Payments Act 1967, as amended, provides, “reasons not related to the employee concerned”. Redundancy, cannot, therefore be used as a cloak for the weeding out of those employees who are regarded as less competent than others or who appear to have health or age-related issues. If that is the reason for letting an employee go, then it is not a redundancy, but a dismissal.”    

Judge Charlton recited two specific legal requirements in effecting a legitimate redundancy, both of which are directly relevant to the instant case; The first is Section 7(2) of the Redundancy Payments Act 1967, as amended by Section 4 of the 1971 Act, and by the Redundancy Payments Act 2003, wherein Section 5 (2) 1 requires that “(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 … “ five listed grounds.

Thus, highlighting the essential requirement of “impersonality” in effecting a fair dismissal on grounds of redundancy, noting later that in St. Leger v Frontline Distributors Ireland Ltd [1995] E.L.R 160 at 161 to 162, an EAT Chairman stated that “Impersonality runs throughout the five definitions in the Act.”

Judge Charelton remarked that “It may be prudent and a mark of a genuine redundancy that alternatives to letting an employee go should be examined” and that “a fair selection procedure may indicate an honest approach to redundancy by an employer”.

In this case the respondent says a genuine redundancy existed and that was the only reason the complainant’s employment was terminated. They set out a new structure for the organisation which put the Sales and Business Manager positions in the region they managed. The complainant was located in the respondent’s head office in Ireland but managed an area which consisted of France, Spain and Belgium. The new structure included a Western Europe region, which consisted of France, Spain and Portugal. There were some changes to the roles and when discussed the salary was reduced but the respondent agreed for the complainant’s salary to be red-circled. However, these new roles were not specifically presented to the complainant as roles she would be suitable for. The Commercial Director’s notes of the meeting state: “we would potentially be looking at the creation of three new sales manager positions”. There was a good deal of correspondence between the respondent and the complainant or her representative before they met again on 1 November and the complainant was not advised of any specific alternative roles. The respondent’s minutes of the meeting on 1 November suggest it was acrimonious with much discussion of the redundancy process, which did not get very far. The complainant’s representative also made the respondent aware of her complaints which were the subject of her claim under the Employment Equality Acts. The representative also raised the alleged Protected Disclosure. Then the complainant’s representative said the complainant would not be taking part in any further consultation in relation to her redundancy and the complainant and her representative chose to leave the meeting, as they considered the decision to make her redundant had already been made. The respondent did not specifically refer to any possible alternative roles for the complainant.

On 5 November the respondent wrote to the complainant confirming that her role was being made redundant and giving her one month’s notice “unless we agree an alternative role in the Company with you”. A job spec for the new roles was enclosed. On the same day the complainant was made to hand in all her company property and told to leave the respondent’s premises. She was not given any time to consider the new position. The complainant’s representative responded the following day accepting a position on behalf of the complainant that had not been offered. The respondent clarified the position on offer on 9 November and asked the complainant to clarify her interest in this role. The complainant confirmed her acceptance of the Regional Sales and Business Manager for Western Europe on 13 November and asked to be allowed to return to work. She also asked for details of the relocation package, confirmation that she would be kept on the Irish Payroll System while working in France and there would be no break in her service. The respondent replied the following day confirming the complainant’s acceptance of the role and saying she would remain on ‘gardening leave’ while the details were worked out. They also clarified that the specification of the role had not yet been finalised. They did confirm her service would be unbroken. There was further correspondence between the representatives but it was not until 27 November 2018 that the respondent forwarded a contract of employment, job specification, key performance measures for the position and a confidentiality agreement for the new position. The complainant was told that if she did not meet the respondent 2 days later “to make further arrangements and sign the enclosed documents this will be treated as your rejection of this role and may be treated as your resignation from the company.” This was extended for a further day. Then, on 3 December, the respondent asked the complainant for a response by close of business on 4 December. As the complainant did not reply the respondent terminated the complainant’s employment on the grounds of redundancy on 5 December 2018.

I have detailed the correspondence between the parties to highlight the time lines involved. At the same time there was also correspondence regarding the complainant’s grievances and alleged Protected Disclosure. Looking at the claim of unfair dismissal I note that the respondent only sent a contract, specification and key performance measures for the new role on 27 November and she was made redundant on 5 December, a total of 9 days. I understand the respondent’s frustration at the complainant’s lack of a clear request for more time to have the contract considered by a French lawyer. However, the time lines were unrealistic for someone to consider a new job in a different country, particularly at a time when she was pregnant and uncertain of her maternity leave entitlements and of the full implications of the employment contract.

The initial complaint form was registered on 19 December 2018 and says the reason given for her dismissal was redundancy and she claims it was because she made an alleged Protected Disclosure. However, she made the alleged protected disclosure one month after she was told that her position was in danger of redundancy. Also, the complainant accused the respondent of having already made the decision to make her redundant. Therefore, I can find no evidence to support the claim that the dismissal was penalisation because she made a protected disclosure.

I must now examine the claim of the respondent that the dismissal arose from a genuine redundancy. Firstly, I accept that the respondent was making significant changes to the organisation and part of the changes involved locating the Sales and Business Manager positions in their assigned regions. I also accept that the new regional positions had some changes to them from the role carried out by the complainant. In these circumstances it was reasonable to advise the complainant that her position was at risk of redundancy. The possibility of alternative positions was also mentioned. However, I am not satisfied that the respondent took Judge Charleton’s advice that “It may be prudent and a mark of a genuine redundancy that alternatives to letting an employee go should be examined”

The complainant was only given definite information on the new role when she was given notice by the respondent and made to leave their premises. Then, as outlined above, she was only given nine days to fully consider this new position in a different country before her employment was terminated. From the evidence given the complainant was still actively interested in this role but was not given sufficient time to get a French lawyer to advise her on the new contract.

I therefore find the respondent did not exhaust the alternatives to dismissal and as such did not have reasonable cause to dismiss the complainant at that time. This amounts to an unfair dismissal.

CA-00024339-002 - Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act. I find the respondent did not discriminate against the complainant on the grounds of her gender.

CA-00024339-004 - Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. I find that the complainant under the Maternity Protection Act is not well founded.

CA-00024339-001 - Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. I find that the complainant was unfairly dismissed. In assessing the award I note that the complainant was pregnant at the time of her dismissal and this contributed to the delay in finding alternative employment. Taking all factors into account I award the complainant €56,000.

Unfair Dismissal