Complainant

Respondent

Parties

Seamus  Rigney

Moss Bros Group Plc Moss Bros

Representatives

Barry Kenny, Kenny Sullivan Solicitors

John Lynch Whitney Moore 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-00040906-001

10/11/2020

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

CA-00040906-002

10/11/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00041770-001

04/01/2021

The Complainant on 10th of November 2020 submitted claims under Section 77 of the Employment Equality Acts, 1998 – 2015 (‘the Equality Acts’), that the Respondent discriminated against him on the basis of his age, in: getting a job; promotion; and in being subjected to dismissal for discriminatory reasons; as well as a claim of victimisation.  The claim of victimisation was withdrawn at the hearing.   The cognisable 6-month period for these claims’ dates from 11th of May 2020 to 10th of November 2020.

The Complainant submitted a claim pursuant to section 39 of the Redundancy Payments Act, 1967, that the Respondent failed to pay him his redundancy payment, also submitted on 10th of November 2020.   On the 4th of January 2021 the complainant submitted a further complaint pursuant to section 12 of the Minimum Notice and Terms of Employment Act, 1973, that the Respondent failed to afford him all his rights during his notice period.  These claims in respect of redundancy and in respect of minimum notice entitlements were withdrawn at the hearing.

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

CA-00040906-001

10/11/2020

The complainant submits that

He was subjected to discrimination in his employment by the Respondent due to his age.   It is submitted that this started with derogatory comments regarding his age, progressed to an unfair and discriminatory redundancy process designed to procure his exit from the Respondent due to his age, and culminated in an unfair and discriminatory competition process for a new position, being an alternative to redundancy, designed to procure his exit from the Respondent due to his age.

The complainant alleges that discriminatory comments in relation to his age were made in October 2019 by Area Manager, Mr. K while on a store visit.  The complainant alleges that Mr. K told the complainant and his assistant manager Mr L that their stock selections reflected the fact that the store was being run by “two old guys”.  This comment was allegedly made in October 2019 which is outside of the cognisable 6 months’ time period of the complaint.

The complainant submits that on 17 July 2020 the Complainant and his colleague Mr. L were informed that, as part of a local “management re-organisation”, their positions were at risk of redundancy.    As part of this process, they were informed that they were free to apply for new positions of ‘Town Manager’ and ‘Assistant Town Manager’. The Complainant duly sought to apply for the role of ‘Town Manager’.

 In applying for the position of Town Manager, the Complainant was competing with Mr. F, a man in his early thirties.  The Respondent commenced a competition process in respect of this position.   The Complainant maintains that this competition process was fundamentally flawed, unfair and discriminatory and was designed to procure his exit from the Respondent.   He submits that the process was flawed and that the scoring in the Matrix was manipulated to design a result in which Mr F would be made Town Manager. In particular, the complainant was initially given a minimum score for his honesty and integrity.

 Between 20 July 2020 and 24 July 2020, the Complainant attended two consultation meetings with Mr. K and Ms. H, HR Business Partner following which he was informed of his scores on a matrix for the new role of Town Manager. The Complainant was dissatisfied with these scores and challenged same during the 2nd meeting.

 On 30 July 2020, and 12 August 2020 the Complainant attended a third and fourth consultation meeting with Mr. K and Ms. H, HR Business Partner.    During the fourth meeting he was informed his matrix score for the Town Manager role had been adjusted upwards but that, notwithstanding this, he was unsuccessful in his application for the role.

Mr. K, Area Manager then reiterated to the Complainant that the role of Store manager had been made redundant, but he invited the Complainant to assume the role of Assistant Town Manager on a trial basis during which it was open to him to opt instead for the redundancy package.

 On 18 August 2020, the Complainant attended a fifth consultation meeting with Mr. K and Ms. H, wherein the Complainant accepted the Assistant Town Manager position on a trial basis as per the Respondent’s previous offer.   This was confirmed by the respondent by letter dated 21 August 2020 on which date he commenced his new role as Assistant Town Manager on a trial basis.   The complainant was now reporting to Mr. F, the Town Manager and submits that same amounted to a de facto demotion.

The Complainant submits that he was subjected to further discrimination and also to harassment in relation to his age during this trial period.  He submits that on various dates, Mr F told him that he was going to “make his life hell”, told the Complainant that he “should have taken the money”, and told him “You’d be better off in a place like Cleary’s” and also that the Complainant would not be able to “last the pace”.  It is submitted that the Complainant understood this last comment as directly relating to his age.

  It is submitted that this was unwanted conduct regarding the Complainant’s age that had the purpose and effect of violating his dignity and creating an intimidating, hostile, degrading, humiliating and offensive environment for the Complainant. As such, the Complainant maintains that same amounted to harassment. The Complainant submits that he understood that the writing was on the wall, and he commenced looking for alternative employment in any field.

By email dated 10 September 2020, the Complainant wrote to Mr. K and Mr Fahy, stating: “Please accept this letter as my notice of intention to terminate my position as Asst. Town Manager during the trial period as previously discussed. My four weeks’ notice will expire on Saturday 10/10/2020 however as stated in previous correspondence as my notice is to be paid in lieu, I would like to request my last working day would be Saturday 12/9/2020. Can N please confirm the details of my redundancy payment as soon as possible including the payment in lieu”.    The respondent replied stating that the complainant was no longer entitled to a redundancy payment as his resignation stated that he wished to pursue a role outside of retail.   The respondent also added that the required notice is 4 weeks and was to be worked by him unless mutually agreed with Mr. K or Mr. F. 

The complainant advised the hearing that the matter of the redundancy payment and the payment in lieu of notice were now resolved as the respondent had made these payments since the claims were lodged.     These claims were subsequently withdrawn at the hearing.

It is submitted that, in respect of the Complainant’s complaint that he was discriminated against by the Respondent based on his age, that the appropriate comparators are Mr. F (‘the Comparator’). Despite the Comparator sharing similar characteristics to the Complainant, other than the Complainant’s age, the Complainant was treated less favourably than him and he was treated more favourably than the Complainant in that he was not subjected to harassment regarding his age and the score matrix for the competition for the position of Town Manager was manipulated to result in a predetermined outcome favouring Mr. F.

It is submitted that, if the Comparators are in any way not suitably applicable to any aspect of the Complainant’s complaint of discrimination, that the Complainant is entitled to utilise a hypothetical comparator for those purposes.

The respondent submits that

the Complainant commenced his employment with the Respondent as a store manager on 12 March 2018.

The Complainant alleges that discriminatory comments were made to him in October 2019.  If this was the case (which is denied) no complaint was made by the Complainant under the internal policies and procedures. Furthermore, the Complainant is out of time to raise this in his claim for discrimination as it is well outside the 6-month time limit within which a claim for discrimination must be brought. The Complainant has not sought an extension of time and is, in any event, outside of the maximum time limit of 12 months.

On the 12 March 2018 the Complainant commenced his employment with the Respondent as a store manager. The Complainant worked primarily from the Respondent’s store at Liffey Valley Shopping Centre, Clondalkin, Dublin 22 (“the Store”). The Respondent had an employee handbook/policies and procedures on the internal intranet known as the HUB covering all matters including, grievance, disciplinary, bullying and harassment and discrimination.

Because of the effect of the coronavirus there was an increased pressure on outgoing business costs and footfall within the stores was extremely low and generating minimal cashflow. A continuous analysis of outgoing costs was being carried out and the Respondent was identifying ways to manage the payroll costs and reduce expenditure. A decision was taken by the Respondent to restructure their business by making the current store manager and assistant manager roles within the Dublin stores, Liffey Valley and Dundrum, redundant as the current roles did not suit the needs of the business. The Chronology of that process is as follows and all documentation in relation to the process including minutes of meetings, selection matrix, scoring and job roles are included.

The Complainant was invited to a business announcement by email dated 16 July 2020 from Ms. H HR Business Partner. The announcement meeting took place via TEAMS on 17th July 2020 when the Complainant was informed that his role was at risk of redundancy.

Between 20th of July and 18th of August 2020, 5 consultation meetings took place between the respondent and complainant.

The Complainant confirmed at each meeting that he was happy to attend the meeting unaccompanied and he was provided with a copy of the minutes of each meeting after it had concluded. The Complainant had been provided with the two job descriptions for the new roles prior to the individual consultations. The Complainant indicated that he would like to go for the Town Manager Role.

 In addition to the job descriptions the Complainant was provided with the skills matrix for each role. The skills matrix and scoring were outlined and explained in detail to the Complainant. It was explained to the Complainant that he would need to a level of above 90% and that the scoring would be carried out by Mr. K based on evidence and feedback.

 Throughout the consultation process the Complainant had an opportunity to discuss and have input into the scoring awarded under each heading. At the third meeting further dialogue and feedback was provided and it is clear from the scoring that the Complainant’s view was taken into account as scoring was amended to reflect his views. This is evident from the notes in which it can be shown that there was a detailed discussion regarding each of the selection criteria, the matrix and the scoring and the Complainant had a full input into the scores that were attributed. He was also given an opportunity to provide supporting documentation throughout the process.

Ultimately Mr. K confirmed that the Complainant’s role as store manager was redundant, that the previous management structure within the Liffey Valley Store was no longer part of the structure and that the two new roles were being implemented as part of this proposal. Based on the selection criteria, he confirmed that he was not able to offer the Complainant the Town Manager role. A benchmark of 90% for each role had been set and the Complainant had not achieved this.

However, in relation to the Assistant Town Manager role the Complainant had achieved a score of 79%. In light of this, following a review of the selection process and the evidence sent to him by the Complainant, Mr. K confirmed that he would offer the Complainant the opportunity to trial the assistant Town manager role based on his experience and skillset.

The role was subject to a three-month trial period and the achievement of set objectives. He indicated “during this time, you may decide, or the company may decide, whether the new position is suitable. If at any time during the trial period you decide that the alternative position is not acceptable, then, following confirmation in writing from you, a final redundancy date will be agreed with you and the redundancy payment, in respect of the redundant role, will be made to you”. Objectives for the Irish store were agreed in relation to both the town manager and the assistant town manager role.

At a meeting on 18 August 2020 Mr. K confirmed that the Complainant had accepted the role of assistant town manager. Mr. K confirmed that both roles had set objectives that are required to be met. During the period the Complainant would receive support to meet those and a bit like a probationary review, reviews would take place every four weeks to assess how everything was going. Mr. K confirmed that weekly meetings would be held via TEAMS, and he confirmed that the Complainant had his full support to help him do the role and use it as an opportunity to do the role. He stated “if I did not feel you were able to, I would not have offered you the role. You do have the opportunity yourself if you do not want the role, but that is up to you. I want to see you and the role work, and I support that. Do you have any concerns?” The Complainant confirmed that he did not.  

 By letter dated 21 August 2020 the trial role as Assistant Town Manager was confirmed in writing to the Complainant. During that trial the Complainant did not lodge any grievance in relation to anything that happened. He did not raise any issues with his manager or Mr. K regarding any alleged discriminatory or other unacceptable treatment.

By email dated 10 September 2020 the Complainant indicated that he wished to terminate his position and asked that Ms. H reconfirm the details of his redundancy payment as soon as possible including the payment in lieu.

The complainant in this email thanked Mr. F and Ms. H, HR Business Partner for their help and support and stated that he had been offered a job outside of retail that he wished to pursue.

There was no mention of discrimination/harassment related to the Complainant’s age.

 The respondent in support of its arguments submits the case of Margetts v Graham Anthony & Company Limited, EDA038, wherein the Labour Court stated as follows: -  “The mere fact that the Claimant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Claimant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.” 

 It is submitted that the mere fact the Complainant was “older” is not sufficient to shift the burden of proof to the Respondent. The Complainant has not put forward any evidence to support the allegation that the redundancy process was flawed and was “designed to procure his exit”. Mere assertion is not evidence and there is no evidence to support this.  Furthermore, there is absolutely no evidence that the Complainant was discriminatorily dismissed in circumstances where he resigned from his employment and never lodged a grievance in relation to anything prior to that resignation

It is submitted that the Respondent took a decision to reorganise its organisation.  It is further submitted that the Complainant was brought through an extremely detailed consultation process in which he had detailed discussions and input into the scoring in the selection matrix.  The complainant accepted an offer to trial an Assistant Town Manager role and sought alternative employment during that trial which he ultimately accepted.  There is no evidence whatsoever of age discrimination.

Employment Equality Acts 1998-2015 defines Discrimination

(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,..…

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—……

…. (f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),”

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination.  It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him.  If he succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary.

In the case of Melbury Developments v Arturs Valpetters EDA0917 the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a Complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that it be of sufficient significance to raise a presumption of discrimination. However, it must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn …… the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

The complainant at the hearing asserted that he was discriminated against on grounds of age in respect of the respondent’s decision to restructure the management of its two stores and to make the position of Store Manager redundant and replace it with the position of Town Manager and Assistant town manager with both posts having responsibilities across both stores.

Furthermore, the complainant asserts that he was given the opportunity to apply for the new position of Town Manager but was unsuccessful and that a younger candidate Mr. F was more successful.

The complainant was then offered and accepted the position of Assistant Town Manager which he asserts was a demotion but which he accepted on a trial basis with the proviso that he could avail of a redundancy package if it was unsuitable.

The complainant performed the role of Assistant Town manager for a few weeks before submitting his resignation and request the redundancy package and four weeks payment in lieu of notice.  There was initially a dispute with the respondent regarding the payment of the redundancy and the notice pay resulting in the lodging of separate claims in respect of Redundancy and Notice entitlements however the complainant advised the hearing that these matters have since been resolved and monies paid to the complainant.

The complainant has grounded his claim of age discrimination in comments he alleges were made to him by the Area Manager, Mr. K while on a store visit in October 2019.   The respondent at the hearing objected to this stating that the conversation in question was out of time and no application had been made for an extension of time limits.  The complainant submitted that the comments made were indicative of a state of mind and were not incidents of discrimination in and of themselves.   I advised the parties that I would follow the precedence set in Hurley whereby I can consider alleged incidents outside of the 6 months where I find there to be an incident or incidents of discrimination within the cognisable 6-month period.

In investigating this case I will firstly deal with matters inside of the 6-month cognisable period. 

The complainant in raising allegations that he was discriminated against on grounds of age submits that he was unsuccessful in his application for the position of Town Manager and that this was due to his age.  He submits that a younger candidate Mr. F was successful.

The respondent advised the hearing that the applications for Town Manager were based on a scoring matrix against which applicants were scored.  The complainant when questioned at the hearing confirmed that he had no issue with the scoring matrix.

The complainant states that he scored badly on a number of categories and that he was marked unfairly low in respect of 2 categories in particular.  Both parties agreed that the complainant had raised this as an issue with the respondent and that his score had been revised upwards.  The respondent submits that the successful candidate needed a score of 90 % and the complainant after having his scores revised scored 79%.  

The complainant following this process was offered the role of Assistant town manager with responsibilities for two stores which he accepted.  The complainant advised the hearing that this was a demotion as he was now answerable to Mr. F the Town Manager and had previously only answered to the Area Manager.   The respondent advised the hearing that the position was in fact a promotion with a higher salary and more responsibility and that the revised reporting structure had been part of the initial decision to restructure. 

The respondent advised the hearing that a decision had previously been made to restructure the company and follow the UK shop model whereby they replaced Store managers with A Town Manager and Assistant Town Manager, and both had responsibilities spread across two stores.   The result of this restructuring was that the Store Manager position and Assistant store manager positions became redundant.   This redundancy was offered to the complainant and to his colleague Mr. L who accepted the redundancy.   The complainant was offered alternative employment in the form of applying for the two new posts or in the alternative accepting the redundancy which he later did after trialling the Assistant Town Manager position.

The complainant at the hearing sought to assert that the restructuring decision was an attempt to remove him from his job as he didn’t fit the age profile of the respondent.  However, I note that no evidence was adduced to suggest that the complainant at the time disputed the restructuring, and he accepted the new role of Assistant Town Manager on a trial basis before ultimately resigning stating that he had been offered another job and requesting his redundancy payment. 

The complainant claims to have been discriminated against on grounds of age in respect of promotion and this claim relates to his failure to secure the post of Town Manager.  The complainant claims that he was marked unfairly low on two categories but also concedes that these scores were raised after raising the issue with the respondent. 

The complainant was marked low on ‘Honesty’ which he objected to and the respondents reasoning for this related to the complainant not adhering to the shopping centre opening and closing times during the previous Christmas period and instead making a decision to close the store at an earlier time.  The complainant as justification for this stated that the extended hours were not mandatory and that he deemed it not to be cost efficient to pay staff or keep the store open that late as it would not get the business to justify the increased cost.  The complainant stated that he did not hide this from the respondent as he had always sent them the rosters and so it could be seen what hours were being worked in the store and when.  The respondent stated that the complainant had not advised them that he was not adhering to store opening hours and that it was the shopping centre manager who notified them of this.    The complainant on the matrix scored a 1 out of 4 in this category initially and this was the reason given for the respondent.  When the complainant challenged this score the respondent increased his score to 2.

The complainant also raised the issue that the respondent scored him exceptionally low in relation to his use of social media.  The complainant advised the hearing that he does not use social media.  The respondent asserts that it was not just social media which he did not make use of but that he did not use any of the platforms used by other stores.   The complainant advised the hearing that where he had challenged scores his scores had been slightly increased by the respondent.  He advised the hearing that his scores in more than 4 categories had been increased.

The complainant asserts that he scored unfairly low in the scoring matrix for town manager but has failed to establish that these scores related to his age.  He sought to assert that the emphasis on social media use gave an unfair advantage to the younger candidate Mr. F, but this is merely an assertion unsupported by facts or evidence.

Discrimination on ground of age in respect of promotion can be proven where a more qualified candidate is passed over for a less qualified candidate.  The complainant at the hearing did not provide evidence that he was a better qualified candidate than the successful candidate.

The complainant in this case advised the hearing that he had initially accepted the post of Assistant Town Manager on a trial basis and that he resigned this position after four weeks having been offered a job outside of retail.   

The complainant sought his redundancy payment and payment in lieu of notice and albeit after some delay he received the redundancy payment and the payment in lieu of notice.  

The complainant in seeking to relate his redundancy to age discrimination advised the hearing that he was subjected to harassment on grounds of age and stated that Mr. F had told him that he would ‘make his life hell’.  It is submitted that Mr. F also told him that he “should have taken the money”, and that “you’d be better off in a place like Cleary’s”.    It is submitted that Mr F told the Complainant that he would not be able to “last the pace”, a comment which the complainant submits is directly referring to his age and submits amounts to harassment on grounds of age. 

The respondent at the hearing denied that such comments were made.  The Respondent advised the hearing that it had an employee handbook/policies and procedures on the internal intranet known as the HUB covering all matters including, grievance, disciplinary, bullying and harassment and discrimination.     The respondent submitted that the complainant has failed to provide evidence of less favourable treatment on the grounds of age in respect of this matter.  I note that the complainant has not indicated whether there was any adverse treatment or whether the alleged threat of ‘making his life hell’ ever became a reality and he has not provided examples or incidents of adverse treatment on grounds of his age.

 In addition, as regard the allegation of harassment the complainant when questioned at the hearing as to whether he had ever raised this issue with the respondent prior to his resignation or raised a grievance in accordance with the respondent’s policies stated that he did not because he had secured another position he also added that he had felt that ‘the writing was on the wall’ and so he commenced looking for alternative employment, which he found.

The complainant has also submitted a claim of discriminatory dismissal but advised the hearing that he resigned from the Assistant town Manager position.

 In examining the claim of discriminatory dismissal, I note that the complainant in this case resigned having trialled the alternative job of Assistant Town Manager.  I also note that the complainants previous post was made redundant following a management restructure and that the complainant at the time of the restructure did not raise an issue when he was invited to apply for the post of Town Manager.   In addition, I note that he accepted the post of Assistant Town manager and following a trial period resigned and requested his redundancy which he has since been paid.  It is noteworthy that the complainant in his resignation letter stated that he had been offered an alternative job outside of retail and that he was accepting this job. 

 The complainant at this point did not assert that he had felt discriminated against or that he felt aggrieved or forced to resign.      It is clear from the evidence adduced that the complainant only raised this issue after the respondent had refused to pay him the redundancy payment to which he was entitled.  While the respondent’s treatment of the complainant in respect of the redundancy payment was not acceptable in the circumstances it does not however amount to less favourable treatment on grounds of age. The redundancy and notice entitlements were ultimately paid by the respondent.     On the one hand the complainant asserts that he was discriminatorily dismissed on grounds of redundancy but on the other hand it is clear that he accepted the offer of alternative employment and having trialled the position of Assistant Town Manager for 4 weeks resigned and requested his redundancy.  In addition, I note that the complainant at the hearing did not satisfy either the ‘contract’ or the ‘reasonableness test’ which would be required to ground a claim of constructive discriminatory dismissal. 

Having carefully considered this matter I am satisfied from the totality of the evidence adduced that the complainant in this case was not discriminated against or harassed on grounds of age in respect of getting a job promotion or in respect of his termination of employment which was brought about by his resignation following the redundancy of his role after trialling an alternative role.

I am satisfied from the totality of the evidence adduced that the Complainant was not discriminated against or harassed on grounds of age by the respondent.     Accordingly, I declare this complaint to be not well founded.

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

CA-00040906-002

10/11/2020

The complainant advised the hearing that the respondent had paid him the redundancy payment and accordingly this claim was withdrawn at the hearing.

This claim was withdrawn at the hearing, accordingly I do not find in favour of the complainant in relation to this matter.

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00041770-001

04/01/2021

The complainant advised the hearing that the respondent had since received his payment in lieu of notice and accordingly this claim was withdrawn at the hearing.

This claim was withdrawn at the hearing, accordingly I do not find in favour of the complainant in relation to this matter.