Complainant

Respondent

Anonymised Parties

Group Sales Director

A Specialist  Metals Company.

Representatives

Elizabeth Ryan, Solicitor of Mason Hayes & Curran

James Doran BL Instructed by Butler Monk Solicitors

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-00030039-001

02/08/2019

The issues in contention concern the alleged false Redundancy, on the discriminatory Grounds of Disability,  of a Group Sales Director by a Metals Company.

The Complainant was a long-standing employee (since 1989)  and now occupied or had occupied a very Senior Position at Director level .

Regrettably in the last ten years he has been suffering from a chronic spinal pain condition.

In February 2018 it was necessary to take sick leave and he remains on sick leave to date.

Various correspondence and contacts followed between the Complainant and the Respondent during 2018 and early 2019.

In late May 2019 ( the 20th) the Complainant attended a meeting with Mr. B , a HR Consultant engaged by the Respondent. At this meeting and a follow, up on the 29th May the Complainant was informed that his role as  Group Sales Director had been “dissolved” and he was “At risk of Redundancy”.

Despite numerous requests by his Legal Advisors, since that time, the Complainant has been unable to establish any business or financial rationale for his proposed Redundancy.

The only possible conclusion or proper inference is that the Redundancy is a Discriminatory decision taken on the basis of the Complainant’s obvious disability. It is a clearly discriminatory action designed to unfairly remove the Complainant from the employment of the Respondent.

Furthermore, it is calculated to impair his legitimate claim under the Respondent Permanent Health Insurance policy ( referred to hereafter as PHI) and remove any possibility of a return to work on recovering his health.

Put in basic summary the Redundancy is a sham and a clear Discriminatory action which requires full compensation under the Employment Equality Aat,1998.

The Complainant remains and always was a very valued employee of the Respondent. At this stage he is a beneficiary of the Company PHI policy. There can be no doubt that he is currently suffering from a Disablement – chronic pain issues relating to his back/spine.

This situation was developing during the years post 2010 and the Complainant indicted on several occasions that he could not continue with his work and was planning to resign. Letters of 30th November 2017 and a formal resignation letter of the 19th December 2017 refer. The Respondent did not accept this latter resignation and referred the Complainant to the PHI Scheme of which he appeared to have been unaware.

The Complainant went on Sick leave in February 2018 .Various correspondence followed and  meetings with Mr. B , the Respondent HR Consultant , took place on the 20th and the 29th May 2019.

It is now accepted that these meetings and what happened thereat are the subject of some contention, but the basic fact remains that a Redundancy package was discussed, and a figure was agreed . A copy of an E mail of acceptance from the Complainant of the 17th June 2019 was submitted in evidence.

A formal “At risk” letter was written to the Complainant on the 29th May 2019.

However, in late June the Complainant engaged a firm of Solicitors and a lengthy trail of Legal correspondence developed.

The Complainant’s contention that he had “been ambushed” by Mr. B in late May  was resolutely denied . The Complainant had been clearly seeking an exit arrangement since 2017 and the only real import of the Solicitor’s  correspondence was to increase the level of a possible financial settlement. It was ,at best, a tactical exercise.

The basic facts remain unaltered. The Complainant was treated very fairly at all times , his full salary was paid for an extended period and his employment with the Respondent remains guaranteed.

The Respondent position is best summarised in their letter of the 29th July 2019 where his employment status is confirmed. It is accepted that the former position of Group Sales Director now no longer exists. The Company  is in a dynamic market place and a Managerial reorganisation and restructuring was a perfectly normal situation. A return to active work by the Complainant would be welcomed but will have to be considered on the basis of the medical situation and the needs of the Respondent “At that time”.

The closing sentence of Page One of the  Respondent letter of the 29th July 2019 was quoted

“Nothing is ruled in and nothing is ruled out at this point and is all subject to XX’s ( The Complainant) agreement at the time.”

In summary the Respondent argued strongly that the Complainant had been treated most fairly and indeed generously at all times. He had never been made personally Redundant and remained an employee, albeit now on the PHI scheme, who could return to work, in a capacity to be agreed, once medically cleared to do so.

The claim of a Discriminatory Redundancy was without any basis and should be dismissed.

3:1       The Legal Position.

The case has been referred under the provisions of the Employment Equality Act,1998. As a purported Redundancy is also involved some guidance from the provisions of the Redundancy Payments Act,1967 is also useful. Substantial case law can be cited regarding both Acts.

In an Employment Equality case the basis legal first steps are to establish that

1.       Disablement, as specified in the Act was present, Section 2 & 6 of the Act refer

2.       That a Discriminatory action occurred – Section 2 & 6 again refer

3.       That the Complainant can establish a “Prima facie” case of an “Inference of Discrimination” sufficient to shiftthe Burden of Proof to the Respondent Employer. Section 85(A) of the Act refers.

Section 6(1) (a) of the Employment Equality Act,1998 provides that direct discrimination is where

“A person is treated less favourably than another person is, has been or would be treated in a comparable situation on nay of the grounds specified in subsection(2)”

in this case a Disability

However, all cases and references to Legislation and case law precedents must be grounded in the facts and evidence pertinent to each particular case. The Employment Equality Act,1998 cannot exist in a vacuum divorced from the basic facts of the case on the ground.

3:2       Consideration of Evidence presented and the factual situation as existed at the date of the Oral hearing on the 10th December 2019.

At the date of the Oral Hearing the following basic facts were clear from the evidence presented to the Adjudication officer.

1.       The Medical reports presented indicated a severe disability with at best a most ambiguous prognosis regarding a future recovery.

2.       The Complainant was a beneficiary of the Respondent PHI Scheme which provided a substantial replacement income. This PHI policy would continue, subject to normal Insurance reviews, until normal retirement age. It was presumed that the Respondent would continue to trade normally during this period and pay all required premiums.

3.       The position of Group Sales Director had been “dissolved” and no longer existed

4.       By letter of the 29th July 2019 his employment status was confirmed as was his right to return to work although what this work might be was qualified as having to be considered in the light of all future medical and business /economic circumstances pertaining at that time.

From the point of view of a “Reasonable Observer” it was hard to see how an employee, with an unfortunate but  severe illness, could be in a more  advantageous employment/personal position.

3:3         The complaint of a Discriminatory Redundancy decision.

The basic facts must be seen again here. The Complainant, as an individual employee, was never actually made Redundant. His position as Group Sales Director was “dissolved” and the letter of the 29th May and the two meetings with Consultant Mr.B refer.

The Complainant’s Legal advisors , in their later correspondence , are technically correct in their refences to failings in proper Redundancy consultations and required exchanges of information. However, any consideration of the merits of this Redundancy point cannot be divorced from the context of the overall situation in late May 2019.

At this stage the Complainant had resigned from his employment,  firstly in November and latterly in December of 2017. This was followed by confirming his acceptance of the Severance offer on the 17th June 2019. The Complainant was a senior Executive of Director status and to suggest that he had not been formally or informally consulted by his close colleagues of many years standing regarding his personal situation and or the employment position of Group Sales Director was hard to accept.

Oral evidence was given both by Mr.B, the HR Consultant, and the Complainant regarding the late May 2019 meetings. Recollections varied as to who had initiated certain key points, but it was clear that a severance arrangement had been discussed. To an outsider, at some remove and solely reliant on the oral evidence supplemented by some minimal notes  , to characterise these meetings as an “Ambush” seems somewhat farfetched.

The key fact pointed to by the Respondent was the letter/e mail of acceptance of an exit package from the Complainant dated the 17th June 2019.

Taking the Discriminatory arguments made by the Complainant Solicitors in their later correspondence , (post June 2019) I must make the following points.

The Complainant was ,since at least 2016 if not earlier , very concerned with his medical situation. This is clear from his first Resignation letter of November 2017 , it must be noted that this Resignation letter  was not accepted by the Respondent , full pay was paid for a considerable period from the Complainant’s sick leave in February 2018 and the PHI process was initiated.  A Severance Package deal was agreed in June 2019.

To any reasonable observer none of these actions can point to a decision-making train leading to a Discriminatory Redundancy.

It is accepted that the employment role of Group Sales Director may have been “dissolved” but this was characterised as a business decision taken against the backdrop of the long-term absence and a belief that it was most unlikely for a return to employment of the Incumbent. The Complainant was clear, in his resignation letters, that he did not feel that he could fulfil the duties of the role.

The “At risk” letter of the 29th May 2019 was described by, the Consultant Mr.B, as a normal piece  of Bureaucracy required in the process of devising a tax efficient exit package. Technically this was correct but the personal impact on the Complainant of receiving the letter was possibly underestimated. However, none the less , an e mail of acceptance of a package was sent and received on the 17th June 2019 - well after the “At risk” letter had been issued.

To accept the contention put forward by the Complainant’s Legal advisors that the process was a legally malign series of Discriminatory steps to the detriment of the Complainant I found hard to accept and could not see where there was substantial supporting evidence.

Even taking a look at the Provisions of Section 16 of the Act - Sub Section 16 -3 (A) and (B) and Sub Sections 16- 4 – Reasonable Accommodation itis hard to see how any Discrimination has occurred.

The Complainant has a serious disability, but his income has been largely protected and he has a right to return to work on recovery.

The “Dissolving” , an unusual choice of word, of the Group Sales Manger position ,may have been somewhat lacking in absolutely formal Redundancy procedures but on overall balance and from all the evidence presented did not amount to a formal Discrimination against the Complainant.

3:4        Summary and Conclusions.

Regarding the Legal questions raised above at the start of Section 3:1 of this Adjudication decision I came to the following conclusions.

As regards point 1 there was a clear qualifying Disability

The question of the shifting of the Burden of Proof and a Prima facie case having been made being made was accepted in my considerations.

As regards Point 2 and 3,  I could not see, from a careful consideration of the evidence , both written and oral , that there had been a Discriminatory Action on the grounds of Disability, Redundancy, Conditions of Employment or Other Grounds as alleged.

The process was complicated and personally difficult for all parties, but I could not see any qualifying Discriminatory actions.

I deem the case Not Well founded and is set aside.