Complainant

Respondent

Parties

Ethel  Ryan

Tesco Ireland Retailers

Representatives

Sweeney McGann

Niamh Ní Cheallaigh

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00043295-001

29/03/2021

The complainant, Ms Ethyl Ryan, has been employed by the respondent, Tesco Ireland, for 25 years always in the same location which was specified in her contract of employment.  For the past 17 years she has been Personnel Manager in the same store.  Following reorganisation, the employer – Tesco Ireland- proposed to change her role to that of Deputy Store Manager in a different store, a position which the complainant does not find acceptable.  The complainant is claiming that her post has been made redundant.

The complainant, Ms Ryan, has been employed by the respondent, Tesco Ireland, for 25 years always in the same location which was specified in her contract of employment.  For the past 17 years she has been Personnel Manager in the same store. Ms Ryan applied for parental leave in 2013 and worked Tuesday, Wednesday, Thursday and Saturday for the last 7 years. She chose to work Saturdays as it allowed her to save on childcare as her husband did not work at weekends.

Ms Ryan was advised in early 2020 that the company intended to carry out a restructuring which would have serious implications for her role and that of all Personnel Managers. More particularly, Ms Ryan was advised that she effectively had two options; all Personnel Managers could apply for the newly devised People Partnering roles where it was proposed there would no longer be a dedicated Personnel Manager for any one store but the role of People Partner who would have responsibility for a specific geographical area or; she would be placed automatically in a role of Deputy Store Manager in a different store.   Ms Ryan had serious concerns with regard to first option in particular around the geographical area that was being proposed. She has three young children and has worked within 15 minutes from her home from the outset of her career and could not commit to a role that would require a significant amount of travel over a very broad geographical range. Ms Ryan was quite happy to consider such a role in the event that there was a reasonable geographical range that would allow her to both leave and return home to meet her personal responsibilities, however, no such comfort or guarantees were provided in that regard. 

Ms Ryan was advised that if she did not wish to apply for the People Partner role and/or applied and was unsuccessful, as a default she would be placed automatically in a role of Deputy Store Manager.  It is Ms Ryan’s position that this role was in no way comparable to her role as Personnel Manager.  Whilst this position was identical in pay, it was not identical in any shape or form in terms of duties and functions.  Ms Ryan made it clear that she had invested a lot in building up her skills as a dedicated HR/Personnel Manager and saw a move to that of a Deputy Store Manager as being very damaging to her career and certainly would never have chosen such a role. Ms Ryan raised all of these issues as part of a grievance but the outcome was clearly predetermined as the respondent did not want to accept the unsuitability of these roles where this would give rise to a redundancy situation for any Personnel Manager that did not wish to accept the alternative role(s) and which would have been costly for the respondent.

Ms Ryan’s role as Personnel Manager no longer exists on foot of the restructuring. The alternative roles that have been put forward by the respondent are not reasonable alternatives.  Ms Ryan acted entirely reasonable to decline the offers of alternative roles. Therefore, she is entitled to a redundancy payment.

 In the UK case of Hudson v. George Harrison Ltd. EAT 0571/02, which considered almost identical provisions in British law, it was held that determining the reasonableness of an offer ‘involves taking into account the personal circumstances of the employee’.

In Cambridge & District Co-operative Society Ltd v Ruse [1993] I.R.L.R. 156 the English EAT, when considering the similarly worded provisions of the British legislation, said, that the question of “the suitability of the employment is an objective matter, whereas the reasonableness of the employee's refusal depends on factors personal to him and is a subjective matter to be considered from the employee's point of view”. 

In Determination No. RPD219, Cosy Tots & Co Ltd and Bernadette Conn, in considering the question of suitability of the alternative role, the Court noted that the issue of location has to be taken into account and the Court noted that it had to have regard to the particular circumstances of each case. In that case, the court considered the fact that the alternative role was located in the city and while the physical distance between the two locations might be argued not to be excessive, there is the reality of a difficult commute between the locations and that in the city the issue is less about the physical distance and more about the length of time it would take to cover that distance. The Court also took into account the lack of car parking in the new location. The Court concluded that based on these factors the offer was not one of suitable employment and so it followed that the complainant was made redundant and was entitled to a payment under the Act.

In Determination No. RPD211, Summeridge Ltd and Derek Byrne, the Court found that there was no job available for the Complainant in his established place of work. The alternative offered to him would have necessitated an unreasonable additional daily commute and costs for him. In all the circumstances, the Court, therefore, found that the complainant was entitled to a statutory redundancy payment.

The Deputy Store Manager role being offered to the complainant is in Arthurs Quay, Limerick. This store is located in the city centre. The distance is 10.9 km from the Complainant’s home and 3.8 km away from her original place of work in Dooradoyle. In order to access this store, the complainant would meet with very heavy traffic which would be unavoidable whatever route she takes, it requires travel through heavy urban areas and school and business routes. The complainant would be required to leave home earlier and would get home later which cause significant childcare issues. 

The complainant’ journey to work usually takes 13 minutes from her home as she can take the motorway. The commute to Arthurs Quay with morning traffic would take 50 minutes or more from the her home and with similar issues on return.

Furthermore, the complainant had free parking in Tesco, Dooradoyle and would incur a fee of €69 per month for parking in Arthurs Quay shopping centre together with the cost of more fuel for her car. The respondent refused to consider that issue.

Preliminary Argument

The complainant alleges that she did not receive any redundancy payments. The respondent refutes this allegation in its entirety as the complainant is still in employment with the Respondent.

Section 7(1) of the Redundancy Payments Act 1967 sets out that “An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment…”.

The complainant has not been dismissed from the Respondent company by reason of redundancy or for any other reason. By virtue of this, the complainant cannot receive a redundancy payment and therefore this claim must fail.

Substantive Argument.

In January 2020 the respondent identified opportunities to improve both the ways of working for colleagues and the shopping trip for its customer. As a result, the senior team structure was modernised in stores which also introduced better work-life balance for its managers by; moving from a store-based People Manager structure to a partnering model for People enabling the Respondent to have dedicated resource to better support its people and; streamlining the senior team structure across all stores to have a consistent operating model with clearer accountabilities.

In addition, changes were introduced to managers’ weekly hours to better support work-life balance, including reducing the working week from 45 to 40 hours per week with no impact to their current salary.

To enable the respondent to make these improvements the following changes were put in place:

The modernisation of the overall People team structure within the business, moving to a partnering model and People roles with a more focused remit; People Partners, Learning Partners and Colleague Relations Partners. These roles would support across multiple stores and no one specific store;

A Deputy Manager would be put in place in all stores and would be the only senior team role in stores.

There was opportunities for all senior team colleagues either as a Deputy Manager or in a People Partnering role in the new structure. All senior team colleagues (Deputy Managers and People Managers) were eligible to apply for one of the 21 people partnering roles across the country.

If a Deputy Manager or People Manager opted not to apply for any of the People Partnering roles, their role going forward was Deputy Manager and the store locations for some senior team colleagues changed.

At the time there was 122 senior team colleagues that this applied to all of which have been either successful in taking up one of the 21 partnering roles or who have moved to the modernised Deputy Manager role (with the exception of the Complainant) and one other colleague who left the Company.

At the time, the complainant was the People Manager in the Dooradoyle, Limerick store. On 23 January 2020 she attended a briefing with her Store Manager who informed her of the improvements being made and the options available to her. She was informed that the changes would be implemented in March 2020 (this was later changed to July due to COVID-19).

Between 26 January and 10 February, the complainant and her Store Manager exchanged correspondence where she set out that she believed the Partnering roles and the Deputy Manager role were not reasonable alternative roles to the Personnel Manager role and that she believed the Personnel Manager role was being made redundant and the Store Manager set out the respondent’s position that the roles were reasonable alternatives and therefore no redundancy situation arose.

The complainant initiated a grievance which culminated in a finding that the complainant had not been treated unfairly or unreasonably as alleged by her and that she was offered a number of options along with all other affected colleagues but that she chose not to apply for the available roles. Therefore, the complainant’s grievance was not upheld.  The decision was appealed and the outcome was again that the complainant’s grievance was not upheld.

On 30 June 2020 the complainant was advised that the restructuring would take place on 13 July 2020 resulting in her commencing the Deputy Manager role in the Arthurs Quay store.

The complainant wrote to the Dooradoyle Store Manager, on 2 July to seek a response in relation to some points. She was replied to on  the same day to advise that her contractual pay would not be affected, that having to pay for parking at a different store did not constitute a pay reduction, that in line with her contract of employment no senior team member was guaranteed to remain in the same store indefinitely, and that should she not wish to move to the Arthurs Quay store they would facilitate her move to the Roxboro store at that time.

The complainant did not respond. She was on annual leave when the restructuring took effect on 13 July and did not arrive to work as Deputy Manager on 20 July, instead submitting a medical certificate citing “stress-related illness”. The complainant remains absent on sick leave and the respondent continues to manage her absence and engage with her in an attempt to facilitate her return to work. In doing so the complainant has confirmed that when she is fit to return to work the Roxboro store or the Nenagh store are viable options for her in the Deputy Manager role.

The respondent advised the complainant of a number of suitable alternative roles to the People Manager role.

The respondent relies on the Redundancy Payments Act, 1967:

“15.—(2) An employee who has received the notice required by section 17 shall not be entitled to a redundancy payment if in the period of two weeks ending on the date of dismissal—

(a)          his employer has made to him in writing an offer to renew the employee's contract of employment or to re-engage him under a new contract of employment,

(b)          the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before the termination of his contract,

(c)           the offer constitutes an offer of suitable employment in relation to the employee,

(d)          the renewal or re-engagement would take effect not later than four weeks after the date of termination of his contract, and

(e)          he has unreasonably refused the offer.”

It is evident that the roles offered to the complainant were suitable alternatives. The complainant decided not to apply for the Partnering roles due to her family commitments, but she was advised that the respondent has a flexible working policy in place to support colleagues. In fact, most of the colleagues in the Partnering roles work reduced hours and working weeks.  The respondent went to great lengths to encourage the complainant to apply for one of the new roles and assured her that her family circumstances would not be affected if she had been successful and that she would be supported. It is evident as the role has evolved that flexible working plays a big part in supporting colleague’s work life balance. However, the complainant did not contemplate from the outset applying for one of the roles and it is evident that redundancy has been the forefront of her mind in a situation where redundancy does not apply.

The complainant argues that the Deputy Manager role is not a suitable alternative to the Personnel Manager role but that is not the case. The complainant is employed on a senior team contract as People Manager which provides for business change and the move to an alternative senior team role is not unreasonable and is in line with her employment contract provision. The Deputy Manager role encompasses the people management in stores with issues then being escalated to the People Partner if necessary. The complainant has the operational experience required for the role having conducted duty management tasks when necessary, as admitted by her in the grievance process. Furthermore, all Deputy Managers received training for the role. It is regrettable that the complainant has unreasonably refused all offers and has not returned to work.

Preliminary Issue.

The respondent has argued that because the complainant was not actually dismissed that a redundancy has not in fact occurred.

It is clear from the facts presented that the complainant’s post was abolished with effect from 13th July 2020, the date on which the restructuring of the company was to take effect.  In order to avoid making the complainant redundant the respondent would have to offer a suitable alternative position to her as provided for under Section 15 of the Redundancy Payments Act. I therefore do not accept the argument that the fact that the complainant had not been dismissed automatically means that she has not been made redundant.

Substantive Issue

Section 15 of the Redundancy Payments Act, 1967 deals with the offer of suitable alternative employment by the employer to an employee whose contracted role has been made redundant.  The section states as follows;

“15.—(2) An employee who has received the notice required by section 17 shall not be entitled to a redundancy payment if in the period of two weeks ending on the date of dismissal—

(a)          his employer has made to him in writing an offer to renew the employee's contract of employment or to re-engage him under a new contract of employment,

(b)          the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before the termination of his contract,

(c)           the offer constitutes an offer of suitable employment in relation to the employee,

(d)          the renewal or re-engagement would take effect not later than four weeks after the date of termination of his contract, and

(e)          he has unreasonably refused the offer.”

The respondent made two offers of alternative employment; firstly, the opportunity to compete for a People Partner role and; secondly, a Deputy Manager post in either of two stores.

The People Partner role was to be filled by competition and is therefore not an offer of alternative employment but rather the possibility of an offer.  I therefore do not consider that the complainant has unreasonably refused an offer of alternative employment in relation to the People Partner role.

The next question to be addressed therefore is whether the offer of the Deputy Manager post was a reasonable alternative. It is Ms Ryan’s position that this role was in no way comparable to her role as Personnel Manager.  Whilst it was identical in pay, it was not identical in terms of duties and functions.  Ms Ryan contends that she had invested a lot in building up her skills as a dedicated Personnel Manager and saw a move to that of a Deputy Store Manager as being damaging to her career.  Secondly, the complainant has argued that the additional time and expense in being assigned to a different store made the proposed alternative role unsuitable. The case evidence presented by the complainant supports the argument that the reasonableness of an alternative offered should take on board the personal circumstances of the employee concerned.  The complainant has presented evidence of why, logistically and financially, the proposed new location was not suitable from her perspective.  Secondly, the complainant was employed for many years as a HR/Personnel Manager.  The alternative role as a Deputy Store Manager is a substantial move away from her chosen career path and profession.  In these circumstances I conclude that her post was abolished due to restructuring on 13th July 2020 and she has not unreasonably refused the offer of alternative employment and is therefore entitled to a redundancy payment.

The effective date of the abolition of her post was 13th July 2020  but it is not clear from the evidence given when the respondent last paid her.  Her statutory redundancy payment entitlement should be calculated based on the date of her final salary payment.

I allow the complainant’s appeal and determine that her date of redundancy should be the date of her final salary payment.

Redundancy, no dismissal, alternative employment refused.