Complainant

Respondent

Parties

Valerie  Travers

Link ASI Limited trading as Link Asset Services (Ireland) Limited

Complainant

Respondent

Anonymised Parties

Representatives

Robert Kennedy B.L., instructed by Powderly Solicitors

IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00042218-001

28/01/2021

The following is a summary of the Respondent’s case

The Respondent said that the complainant has brought a claim under the Unfair Dismissals Acts, lodged with the WRC on 28 January 2021, alleging that she was unfairly selected for redundancy. The Respondent refutes this allegation in its entirety. The Respondent said it engaged in a meaningful consultation with the Complainant, and that she was afforded the right to fair procedures at all times.

The Respondent said the Complainant commenced employment with it on 13 April 2015 as a Senior Lending Analyst.  Prior to September 2018 the Complainant worked as a case manager on a project “X” Mandate, she was managed by Ms. A. In September 2018 the Complainant became a Manager/Senior Asset Manager working on the “Y” Mandate. Initially she was managed by Ms. B and from January 2019 she was managed by Ms. C. The Y Mandate was comprised of 4 modules and the Complainant worked on the Legal and Enforcement module, the Y Mandate supported a specific named client, a contract with the client was signed in November 2017 and was for a 3-year term.

The Complainant’s maternity leave commenced on 6 June 2019, she then took a period of annual leave and returned to work on 18 May 2020. Approximately 8 weeks after the Complainant returned from maternity leave, she was part of a redundancy process. The Respondent’s client sold the part of the business and the volume of work to be done by the Respondent declined accordingly.  An “at-risk” meeting was held on 6 July 2020 with all employees working on the Y Mandate when the Complainant and her colleagues were advised that the client had forecasted a reduced volume of work and consequently fewer numbers of staff were required. There were 57 employees working on the Y Mandate and it was initially forecast that 27 positions would be made redundant, however ultimately after employees had been redeployed a total of 10 individuals were made redundant. The Respondent sought invitations from employees who wished to become Employee Representatives during the redundancy process and the Complainant was elected. It was explained that a meeting would take place with Employee Representatives the following week on 13 July 2020 with weekly collective and individual meetings occurring thereafter until the process concluded in early September. It was also explained that the selection criteria would be applied based on the employees’ performance over the previous 12-month period and that if an employee’s manager had changed during that period, the previous manager would be consulted. By letter of the same date the Complainant and the other employees working on the Y Mandate were advised that their roles were at risk of redundancy.

On 13 July 2020 and 20 July 2020, together with other Employee Representatives, the Complainant attended a briefing. The Employees Representatives, on behalf of their colleagues engaged in discussions regarding issues such as the selection criteria.

The first individual meeting with the Complainant took place on 31 July 2020, the results of the selection matrix were discussed, and the Complainant was advised that she had scored 20 out of a possible 27 and as a result her position had been selected for redundancy. The assessment was completed by the candidates’ line manager together with a team of senior management. In the Complainant’s case Ms. C, who was her manager for the 5-month period prior to her maternity leave and the 2-month period post-maternity leave, had input into the assessment. At the meeting the Complainant raised several concerns, including a concern that input should have been obtained from her two previous line managers, Ms. A and Ms. B, for the purposes of the assessment.

The second individual consultation meeting was held on 6 August 2020, where the Complainant stated that she should have been assessed over the 12- month period prior to her pregnancy (which would have included the time the Complainant worked on the other Mandate, X) as opposed to being assessed over the period both before and after her maternity leave. The Respondent advised that it was not appropriate to consider the time during which the Complainant worked on the X Mandate because the selection criteria in the scoring card were specific to the Y Mandate.

The Complainant stated that the Respondent should have obtained input from her two previous managers when completing the assessment. The Respondent advised her that it would make inquiries to see if input could be obtained from the Complainant’s two previous managers.

The Complainant also raised an issue regarding the fact that to obtain the maximum score in the Qualification category of the selection matrix a candidate was required to have a certain qualification - APA/QFA qualification. It was explained that the candidates were scored against the highest minimum standard to perform any Senior Asset Manager role on the Y Mandate. The Complainant advised that she understood that candidates would be assessed against the skill required for the particular unit that they were working on, so in the Complainant’s case, as she was working on the Legal and Enforcement unit in the Y Mandate she would be assessed against the skills required to work on that unit only. The Respondent advised that candidates were assessed based on their suitability to perform any Senior Asset Manager role in any unit within the Y Mandate and as an APA/QFA qualification was necessary to work in the Personal Insolvency Unit of the Y Mandate this was applied to the selection criteria.

At the meeting the Complainant also stated that on returning from maternity leave, she had not resumed the same role as she had been doing prior to going on maternity leave. It said that the Complainant felt her role was different because there were no longer direct reports reporting into her, however it claims that this would not have made a difference to the scoring, as the selection matrix was based on the role profile and there were no specific criteria relating to managing a team. The Respondent explained that due to both the Covid-19 pandemic and natural business changes, elements of the Complainant’s role had changed while she was on maternity leave, for example while the Complainant was on maternity leave a change was made across the business, that rather than Senior Asset Managers taking calls with solicitors, the Asset Managers could perform this task. In addition, due to the fact that the courts had closed, Senior Asset Managers were no longer required to review the case summaries prepared by Asset Managers for the client’s agents who attended court on the client’s behalf. Prior to Covid-19, this task had been a substantive part of the day-to-day responsibilities of a Senior Asset Manager. In the 8-week period between the Complainant returning from maternity leave and being placed at risk of redundancy, the Complainant suffered from IT connectivity issues and had not fully resumed all her tasks.

The Complainant discussed four alternative roles that she could take in the event that she was made redundant. However, the Complainant did not qualify for several roles because she did not yet have the APA qualification.

The Respondent said as requested by the Complainant, she was assessed by her two previous managers, Ms A assessed the Complainant based on her time spent working on the Y Mandate and Ms B, based on her time working on the X mandate. These score cards were discussed at the final individual consultation meeting, held on 1 September 2020.

At the meeting the Complainant stated that she did not feel that the selection criteria had been applied fairly to her. The parties also discussed the changes to all Senior Asset Manager roles that occurred while the Complainant was on maternity leave. The termination of the Complainant’s role was confirmed by letter and the Complainant was advised of her right to appeal the decision within 7 working days.

The Respondent said the Complainant failed to utilize her right to appeal of the decision. This is not withstanding the fact that she had previously inquired about the time limit. The Complainant continued to work for the Respondent until 14 September 2020 and had every opportunity to appeal the decision. However, she did not.

The Respondent said the Complainant interviewed for a Quality Assurance role and was unsuccessful. In a further effort to ensure that the Complainant remained in continuous employment the Respondent advised the Complainant of a Risk Analyst role that could be of interest to her and provided the contact details of the individual within the Respondent company who the Complainant should contact. The email also asked whether the Complainant’s details could be shared with the individual within the Respondent who was involved in the recruitment process for the new role. There was no reply to the email and the Complainant failed to contact the Respondent about the new role.

The Respondent said that it behaved reasonably and satisfied Section 6(7) of the Unfair Dismissals Act in the steps taken by ways of meetings, and correspondence with the Complainant.

The Respondent cited the decision in Dawson v Eir Imports Limited UD 616/93 where it was established in evidence that there was no “last in - first-out” rule in operation in the employment nor was there any union/management agreement. The employee was selected on the basis of her competence, having been determined not to be as competent as other employees. The EAT laid down the following principle: “Following an assessment of the comparative performance of all similar staff the claimant was selected. The respondent retained the employees who he thought could best contribute to the company. The claimant’s performance was judged to be weakest. The criteria used in the absence of any other procedures were appropriate in the circumstances. The respondent was competent to make the assessment having regard to the small number of staff and his close contact with them. The principles of natural justice did not require the respondent to give the claimant (employee) details of this assessment and his not doing so resulted in no injustice.”

The Respondent said that the dismissal of the Complainant due to redundancy cannot be deemed to be unfair as the Respondent applied the selection criteria fairly to all candidates. It is unfortunate that the Complainant was part of a redundancy process only 8 weeks after she returned from maternity leave. The Respondent admits that there were changes to all Senior Asset Managers roles, however these changes affected several Senior Asset Managers, and the Complainant was treated in the same way as the other Senior Asset Managers. The Respondent contends that the process utilised was fair and reasonable.

The following is a summary of the Complainant’s case.

The Complainant claims that she had been working with the Respondent for 6 years and she really enjoyed her job. She performed her role and managed her teams to a very high level.

She said that she returned from maternity leave on 18 May 2020, and just outside of 8 weeks on her return she was put on notice of redundancy. She said on her return to work she was not given back her team to manage and some of her duties had changed. She said that her team was not returned to her to manage and that she was no longer asked to deal with solicitors. She said that she had sought assistance from other colleagues, of the same grade, within the Respondent, but it was not forthcoming. She claims it was as if the Respondent was not ready for her to come back to work. There was no ICT equipment ready for her, everything was badly handled.

The Complainant claims that she was involved in the redundancy process and in the discussion with the Respondent as a staff representative. She said she wanted to be involved and to assist. She said that the selection criteria for redundancy was difficult to negotiate and took a long time to determine. She raised the issue regarding staff who had not worked in the Respondent during the time period when the assessment would be measured – the last 12 months – and it was finally agreed that those staff would be assessed from the previous period employed with the Respondent. She claims that was not the case for her assessment, she raised it many times and felt that she was unfairly treated by that assessment.

The Complainant had sent in a written submission prior to the hearing, where other matters were raised including matters under the Maternity Protection Act 1994, discrimination under the Employment Equality Act 1998, and matters relating to the Safety, Health and Welfare at Work Act 2005. She said that these claims were supported by the fact that she returned to work on parental leave, and this may have had a bearing on the Respondent’s various decisions in relation to her on matters at that time.

The Law

Section 6 of the Unfair Dismissals Act, 1977

“(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.”

Subsection (4) (b) provides that:

“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:

(a)    The capability, competence or qualifications of the employee for performing the kind which he was employed by the employer to do,

(b)    The conduct of the employee,

(c)     The redundancy of the employee, and

(d)    The employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

The facts in this case in the main are not in dispute. The Complainant commenced employment with the Respondent on 13 April 2015 as a Senior Lending Analyst and in September 2018 the Complainant became a Manager/Senior Asset Manager. She went on maternity leave on 6 June 2019, took a period of annual leave and returned to work on 18 May 2020. Eight weeks after her return to work she and 57 employees working on Y mandate - which was winding down- were put on notice of risk of redundancy. The Complainant was one of 10 persons who were finally made redundant in September 2020.

Therefore, it is for the Respondent to establish that in the circumstances of this case the dismissal of the Complainant was fair. 

In that context I note the decision of Barry v Precision Software Ltd. (UD 624/2005) [2006] JIEC 1801 the Tribunal said:

“In determining whether the dismissal was unfair or not, section 6(6) of the Unfair Dismissals Act 1977 provides that it will be for the employer to ensure that there were substantial grounds justifying the dismissal … It is not for the Tribunal to intrude into the Respondent’s managerial decisions.  The Tribunal has to look at what a reasonable employer would do in the circumstances.  Neither is it for the Tribunal to consider what sanction it would impose.  The Tribunal’s function is to decide whether the employer’s reaction and sanction came within the range of responses, which a reasonable employer might make.” [my emphasis added]

As an Adjudicator, my role is to examine whether, by selecting the Complainant for redundancy, the Respondent breached section (6)1 of the Unfair Dismissals Acts. The burden of proof rests with the Respondent to set out the substantial grounds justifying the dismissal of the Complainant. 

The Respondent submits that the Complainant, along with others, was made redundant, as its client which the complainant had worked on, on Y mandate had sold that part of the business and the volume of work to be done by the Respondent declined. Accordingly, that was the part of the business where the Respondent did not require the same number of staff. That evidence has not been challenged. I can accept that as reasonable, and that there were substantial grounds justifying the decision that redundancies were possible.

The next step is to determine whether the Respondent acted reasonably in its approach. I note that it held a number of meetings through July 2020 and came up with the selection criteria on how those under threat of redundancy were measured. I note the Complainant was front and centre in this process as an Employee Representative.

I note that once that was completed the Complainant had her individual meetings and when she was told that she scored 20 out of a possible 27 and as a result her position had been selected for redundancy, she raised concerns about the criteria. I note she questioned how she was scored and asked for her two previous managers to be involved and that her work under the previous mandate, X mandate, as Senior Lending Analyst should be taken into consideration. I note that the Respondent sought the input of the Complainant’s previous manager and that included her manager while working on X mandate.

I find that a reasonable approach in this situation.

The Respondent claims that it applied a fair and objective selection process where the Complainant scored lowest against the pool of employees under threat of redundancy. The changes to her role she now complains about, were due to restructuring across the board for everyone and many brought on because of Covid-19 and staff working in remoted areas.

I find that this to be plausible in the circumstances of the evidence presented. 

The Complainant’s case is that she was unfairly selected for redundancy, that she had just returned to work following a period out on maternity leave. She had not returned to the same role that she had left, and the assessment was not fair to her because of this accordingly.

Section 6(3) of the Act states:

“Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either –

(a)    The selection of that employee for dismissal resulted wholly or mainly from one or more matters specified in subsection (2) of this section or another matter what would not be a ground justifying dismissal, or

(b)    He was selected for dismissal in contravention of a procedure (being a procedure that had been agreed upon by on  behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941-1971, representing him or has been established by the custom and practice of the employment concerned) relating to the redundancy and there were no special reasons justifying a departure from that procedure, then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.”

In this case I am fully satisfied that the circumstances constituting redundancy was the decreasing business and the need for the Respondent to react. 

Section 6(7) of the Act provides that, in considering a complaint of unfair dismissal I must have regard to the following:

“(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b)  to the extend (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.”

I note that the Respondent discussed the criteria to measure performance and it would appear fair. There was good engagement and the number reduced from possible redundancy was reduced from 27 to 10. I note that the Complainant was involved in the discussions throughout, and she sought input from other previous managers because of her situation and the Respondent allowed for that to feed into her assessment. I note other positions were discussed and some were followed through and some not.

Therefore, I have formed the view that there was a genuine redundancy situation, and the Respondent took reasonable measures to offset the loss to its workforce and in the selection process for those that ultimately were made redundant. I see very good engagement between the Respondent and staff. I am satisfied that it was transparent and open in its dealing with staff throughout.

Having found that a genuine redundancy situation existed and that it was not a sham redundancy as mentioned by the Complainant in her submission. I should address the other matters that were raised since the complaint was received in the WRC, but prior to the hearing. Namely, under the Maternity Protection Act 1994, discrimination under the Employment Equality Act 1998, and matters relating to the Safety, Health and Welfare at Work Act 2005. As I have set out in the Complainant’s evidence above, a submission was received prior to the hearing where these matters relating to other Statutes were raised. During the course of the hearing, I sought further submissions on same and there were sparse comments made “that I should take note of”, that the Complainant had started parental leave on her return to work. However, I am satisfied that these claims, in short, were not actively pursued at the hearing and I only now mentioned them for completeness. The case was not originally made out to be anything more than an unfair dismissal, selection for redundancy. I have found above that a genuine redundancy situation existed. I note that there appears to be no adverse discussions around the Complainant’s parental leave arrangements and no correlation in the evidence presented to me as to the decision to place the Complainant at risk of redundancy. 

Therefore, as regards to procedural fairness, I am satisfied that the Respondent assessed the Complainant fairly, and she was selected for redundancy because she scored lower based on the criteria in the assessment.

Finally, I note that consultation meetings were arranged, and the Complainant was asked to make suggestions on alternatives to redundancy. I find that there was certain evidence presented to the hearing of a meaningful examination of alternatives to redundancy. Given those circumstances I find that the process was a fair procedure and in line with natural justice, it carried out a fair and transparent redundancy process and the Complainant was selected based on objective selection criteria, which renders the dismissal by reason of redundancy fair from a procedural point of view.

I find that the Complainant was not unfairly dismissed by the Respondent contrary to Section 6 of the Unfair Dismissals Acts. I find the complaint is not well founded.

Unfair Dismissals Acts – redundancy - not well founded