Complainant

Respondent

Parties

Lynda  McMonagle

Tesco Ireland Limited

Representatives

Aine Feeney SIPTU Workers Rights Centre

Niamh Ní Cheallaigh 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-00039374-002

26/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00039375-001

26/08/2020

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

CA-00039375-003

26/08/2020

At the hearing CA-00039374-002 and CA-00039375-003 were withdrawn.

The hearing proceeded to investigate CA-00039375-001.

The Complainant commenced employment with the Respondent on the 6 August 2002 as a general assistant. From June 2019 she had a new manager and she found that she was the subject of various changes necessitating the lodgement of a grievance in October 2019.

CA-00039375-001

The Complainant's case is that the Respondent is seeking to unilaterally change her terms and conditions of employment which she contended were red circled in 2010.

Her case was that her contract it was confirmed that her working hours for 35 to 38 per week and would be scheduled over a maximum of 5 working days over 7 and that "your start and finish times and days you work will vary".

In 2010 her store manager agreed that her hours would be red circled. This was confirmed in a meeting record:

Lynda's pattern of hours will not be challenged – she will work 3 x 6 o'clock starts in 2 x 7 o'clock. Lynda has agreed to work in the deli department. On her 6 o'clock starts she will spend her first hour packing bread and cakes before going into set up deli counter.

In 2014, the Complainant received correspondence offering a buyout of terms and conditions of employment that differed from the Respondent's modern contractual terms and conditions. The Complainant did not accept the offer as she wished to remain on the hours she had negotiated in 2010. The Complainant continued with the work pattern agreed and in place.

The fixed hours the Complainant was working continued without interruption until August 2019. A proposed change to her hours was raised by the new store manager. The Complainant was informed that she was being moved to the bakery and that her hours would change. The Complainant outlined that she had an agreement in place since 2010 regarding her hours. The manager agreed to give her six weeks’ notice before they were changed. She advised that the hours would likely fluctuate going forward.

A meeting took place on 19 August 2019.  The Complainant confirmed that she would not change her hours and that she would require notification of the change in writing. No formal written notification of the change was provided to her. The Complainant outlined her objection to the change to her long-standing agreement and explained how the proposed changes would impact on her family including additional childcare costs.

The Complainant lodged a grievance on 20 August 2019. A grievance hearing took place on 24 August 2019. The outcome issued on 28 November 2019. The outcome was appealed on 10 December 2019. An appeal was conducted on 7 January 2020. Follow-up meeting was held on 19 February 2020. An outcome meeting took place on 9 March 2020 with a letter of outcome furnished.

At the hearing the Complainant confirmed that she now worked various hours, most of them early starts. Her latest finish was 4 PM.

CA-00039375-001

The Respondent relied on clause 4 of the Complainant's terms and conditions of employment which provided for the following:

"you will normally be scheduled to work a minimum of 35 and a maximum of 38 hours per week scheduled locally and may fluctuate within this band from week to week and overtime to suit the needs of your store. These hours will normally be scheduled over a maximum of 5 working days over 7. Please note that your start and finish times and days you work will vary".

The Respondent submitted that it was not in breach of the Complainant's fully flexible 5/7 35 – 38 hours contract of employment.

Its case was that no change was made to the Complainant's contract of employment.

The Respondent submitted that it had made every effort to support the Complainant by making the change transition of working arrangement and hours in line with the Complainant's contractual terms and conditions as accommodating as possible.

The Complainant was given six weeks’ notice of the change in her working hours which was substantially greater than required under her Contract of Employment and under Section 5 of the Terms of Employment (Information) Act 1994.

The Respondent was always fair and reasonable in its request that the Complainant work her contractual hours and in doing so the Respondent took into account work life balance and fairness across all colleagues in the store who had the same contract of employment as their colleague.

CA-00039375-001

Section 5 of the Terms of Employment (Information) Act 1994 sets out that

"… Whenever a change is made or occurs in any of the particulars of the statement furnished by an employer… The employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter but not later than-

(a)    one month after the change takes effect…”

To uncover a breach of section 5, I must identify which, if any, of the particulars set out in the Statement furnished by the Respondent under Section 3 were altered.

I have reviewed the Complainant's Terms and Conditions of Employment dated 1 June 2006. I have reviewed Clauses 3 and 4 of this document.

Clause 3 set out

“your weekly contracted hours of work are 35-38 hours per week”.

Clause 4 set out

"you will normally be scheduled to work a minimum of 35 and a maximum of 38 hours per week scheduled locally and may fluctuate within this band from week to week and overtime to suit the needs of your store. These hours will normally be scheduled over a maximum of 5 working days over 7. Please note that your start and finish times and days you work will vary".

These clauses comply with Section 3 (1) (i) of the Terms of Employment (Information) Act 1994 in that they refer to terms or conditions relating to hours of work (including overtime).

I have reviewed the meeting record note 2 July 2010 that the Complainant wished to rely on as evidence of red circling of her working hours. This meeting record note was contained on the Complainant's personnel file. She obtained it under a data access request.

My role is not to decide what the terms of the Complainant's contract should be, but to see if the Respondent provided the required change to “any particulars of the statement furnished” in writing.

The wording of Section 5 is clear, it relates to changes in any of the particulars of the statement furnished by an employer under section 3.

Section 3 (4) of the 1994 Act requires a statement furnished by an employer under subsection 3(1) shall be signed and dated by or on behalf of the employer.

Having considered the evidence provided to me both in writing and verbally, I find that the only Statement provided to the Complainant in accordance with Section 3 of the 1994 Act is the document headed Terms and Conditions of Employment dated 1 June 2006.  I find that the changes to the shift times proposed by the Respondent did not change this Statement furnished by the Respondent.

CA-00039375-001

I declare that the complaint is not well founded.

Section 5 Notification of changes