Complainant

Respondent

Parties

Martin  Phelan

BT Communications Ireland Ltd

Representatives

  Self represented

Kevin Bell, BL

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00042356-001

05/02/2021

The Complaint is that the Respondent contravened the provisions of the Terms of Employment (Information) Act 1994 when a change was made in the Complainant’s conditions of employment against his will. 

The Complainant made detailed written and oral submissions, summarised as follows:

The Respondent made a deduction from a payment to the Complainant which was paid by an insurer in relation to long term sick leave.  The Complainant contends that this was effectively wages and that the Respondent had no right or entitlement to do this as it contravened his conditions of employment which were transferred under TUPE from his previous employer.  A further complaint is submitted that the Respondent withdrew the company car which the Complainant contends he had as part of his conditions of employment with his previous employer.

The Complainant commenced work for the Respondent’s corporate predecessor on 26th August 1985 and remains employed by the Respondent. He has been on long-term sick leave since 4th December 2014.

The Complainant received salary overpayments amounting to €11,798.34 in July and August 2017, which was identified shortly thereafter and flagged to the Complainant. During the course of his sick leave, the Respondent paid ex-gratia payments to the Complainant amounting to €7,590.91 on the understanding that the Complainant was not covered by his occupational Permanent Health Insurance policy.

Happily, in November 2020 the parties’ insurer confirmed that the Complainant would receive his full and backdated Permanent Health Insurance benefit. On 25th November 2020, the Respondent wrote to the Complainant informing him of his future entitlements, and further confirming that he would receive a back payment of €200,965.00 in the December payroll, and back pension contributions of €55,970.61 shortly thereafter.

It was further confirmed in this letter that the Respondent had decided that it was no longer viable to continue providing the Complainant with a company car, which had been done by the Respondent for the preceding six years of the Complainant’s sick leave as a gesture of goodwill. The Respondent specifically informed the Complainant that the Respondent would arrange for the collection of the car on 2nd January 2021. Such benefits are stated in company policy to cease after 6 months of sickness absence.

On 16th December 2020 the HR Manager wrote to the Complainant and informed him that the salary overpayments from the summer of 2017, and the ex-gratia sums paid to him in the mistaken belief that he was not covered by his PHI, would be recouped in the December payroll run. 

The law

Section 5 of the 1994 Act, which the within complaint is predicated upon, provides as follows:

“5.— (1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6 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) 1 month after the change takes effect”

The Complainant commenced employment with the Respondent’s corporate predecessor in 1985, before the commencement of the 1994 Act, and received a contract of employment.  He received contractual documentation, on various occasions, relating to benefits (and cessation of benefits) during periods of illness and the Respondent’s company car policy.The Complainant did not request a written statement of the terms of his employment pursuant to section 6 of the 1994 Act and did not receive one. Therefore, the Complainant has never received a formal written statement of his terms and conditions under sections 3, 4, or 6 of the 1994 Act.

The Complainant complains that he did not receive notification of changes to his written statement of terms and conditions of employment contrary to section 5 of the 1994 Act. As the Adjudication Officer will note, the first requirement of a claim under section 5 is that a complainant has received a “statement furnished by an employer under section 3, 4 or 6”. The Complainant has received no such statement. Even if he had received a statement under section 6 of the 1994 Act, section 3 does not require the details of any company car policy to be set out in a written statement of terms of employment.

Secondly, the recouping of overpayments of salary does not constitute a change to an employee’s terms and conditions of employment. It is simply an administrative action that has no impact on the terms of an employee’s contract.

Thirdly, even if the Complainant had received a statement under sections 3, 4 or 6 of the Act, the Respondent did actually inform him in writing of the removal of his company car, and the recouping of the salary overpayments, in the written correspondence.For the foregoing reasons, the Respondent submits that the Complainant’s claim is manifestly unstateable and should be dismissed accordingly.

Conclusion

In summary, the Complainant commenced employment before the commencement of the Terms of Employment (Information) Act 1994. He has never requested or received a written statement of the terms of his employment under sections 3, 4 or 6 of the 1994 Act. He cannot, therefore, maintain a claim pursuant to section 5 of the Act that he was not notified in writing of a change to a written statement which does not exist.

The recouping of salary does not constitute a change to terms of employment. The details of a company car policy are not required to be set out in a written statement of terms of employment under section 3 of the Act.

In any event, the Complainant was informed in writing about the two matters which form the basis of this claim. Therefore, even if he had received a statement of his terms of employment, and even if the two matters complained of were matters covered by section 3 of the Act, the Complainant would still have no action under section 5 of the Act.

The Complainant’s complaints relate to two acts of the Respondent in relation to (a) deduction of an amount from a payment made by an insurer which relates to wages, and (b) the withdrawal of a company car.  

The complaint was referred under Section 5 of the Terms of Employment (Information) Act 1994 which provides:

5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of

the particulars of the statement furnished by an employer under section 3, 4 or 6,

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) 1 month after the change takes effect, or

(b) where the change is consequent on the employee being required to work

outside the State for a period of more than 1 month, the time of the

employee’s departure.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of

statutes or instruments made under statute F13[, other than a registered employment

agreement or employment regulation order,] or of any other laws or of any

administrative provisions or collective agreements referred to in the statement given

under section 3 or 4.

In relation to the Respondent’s arguments that the Complainant never received a formal written statement of his terms and conditions under Section 3, 4 or 6 of the Act, I find that the Complainant’s terms and conditions of employment were transferred to the Respondent under the European Communities (Protection of Employees) Transfer of Undertakings Regulations 2003 (TUPE).    The Complainant argues that he had rights under the previous employer which he contends were not honoured by the Respondent.  The Terms of Employment (Information) Act 1994 does not provide for the adjudication of disputes between employees and employers on the contractual entitlements hence the inclusion of the word “Information” in the title.   In relation to the provision of information to the employee as provided for in Section 5, in this case the Complainant was informed of the withdrawal of the company car in writing on 25th November 2020 and on 16th December 2020 the Complainant was informed that the salary overpayments would be recouped in the December payroll run.  I find his complaint to be not well founded.  

Terms of Employment Information, not well founded.