Complainant

Respondent

Parties

Ana Morton

Dal Riada Language Centre Limited

Representatives

Anne O'Connell, Solicitors

R&B Partners, Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00035544-001

01/04/2020

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

CA-00035544-002

01/04/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00035544-003

01/04/2020

The respondent runs a private boarding school for girls in Bray, County Wicklow.  They ran a boys’ boarding school which closed in 2020.  The complainant worked in the girls’ school, where most of the students are from Mexico.  The complainant is originally from Mexico and worked as a teacher there for a number of years.  She moved to Ireland 1993 and in October 2011, she commenced working as a receptionist in the girls’ school.  She worked 35 hours a week and her annual salary was €29,196.

In October 2019, the complainant’s job was made redundant and her employment was terminated.  She claims that her job was not genuinely redundant and that she was dismissed due to a breakdown in her relationship with the school’s general manager.  She claims that the procedures that ended with her dismissal were unfair.  She also claims that she was discriminated against on the ground of her age, when a younger person was offered a new role, and, lastly, she claims that she was penalised for raising complaints about bullying and adverse treatment that she was subjected to at work.

Before considering each complaint, I wish to set out the background to the complainant’s dismissal.

The complainant was the receptionist and she worked closely with the school secretary, “Ms H.”  In January 2018, Ms H applied for a promotion to the job of general manager of the school and the complainant helped her with her application.  When this was going on, Ms H advised the complainant to apply for the job of school secretary.  She said that she could be expected to get a salary of €35,000 if she was promoted and she gave the complainant a note to this effect.  The complainant applied for the job of school secretary.

Ms H was appointed to the job of general manager.  In March 2018, the complainant met Ms H and the HR manager to discuss her promotion, but she was informed that she was to continue in the role of receptionist, with some very minor additional duties.  She was informed that her wages would not be increased, but it was proposed that she could work two hours less each week.  The complainant was upset and she called Ms H a liar.  Ms H then made a complaint to the school principal and the complainant apologised.  The complainant was offered a salary increase of €2,000, but she declined this due to the reluctance with which it was offered.

Just under a year later, on February 8th 2019, Ms H asked the complainant to cancel an appointment in a hotel to taste the end of year celebration meal.  The complainant was reluctant to cancel the appointment and a heated discussion took place.  The complainant claims that Ms H mimicked her and mocked the way she was speaking.  Ms H informed the HR manager that the complainant had raised her voice and acted in an intimidatory manner towards her.  On February 11th, the complainant wrote to the HR manager and made a formal complaint about Ms H for her insulting and demeaning treatment.  Four weeks later, Ms H made a formal complaint about how she was treated by the complainant when they had the argument on February 8th.

An external investigator who was a HR manager in another of the respondent’s schools was appointed to see if the matter could be resolved.  This manager, “Ms R,” met the complainant on March 27th 2019, but, the complainant’s submission states that the meeting was no more than “an exchange of pleasantries.”  Ms R’s report of April 3rd 2019 concluded that the relationship between the complainant and Ms H had “broken down quite considerably” and she recommended that “external mediation is mandatory for both parties” to resolve their relationship difficulties.

Ms R’s report made no reference to the complainant’s allegations about Ms H’s conduct and she discussed this with the HR manager on April 30th.  She was then informed that Ms H would not attend mediation and that she would not engage in an investigation into the complainant’s complaints about her.  The HR manager left the school in June and was replaced by Mr Corbett, who attended the hearing on May 31st 2022.  In July 2019, the complainant asked Mr Corbett for an update on her grievance and he advised her that he had no update.

When she returned to work after the August shut-down, a new employee had been recruited in the role of a general administrator.  The complainant was disappointed to find that this employee was given a new computer when she had asked for a new computer before the holidays.  This new employee was in an office with Ms H and, in her evidence, the complainant said that she was given some of her duties.

On September 23rd 2019, the complainant met Mr Corbett again and asked him about the grievance she submitted to the former HR manager on February 11th.  It is the complainant’s case that Mr Corbett said that nothing would be done about her grievance and that the principal would not meet her to discuss it.  She claims that Mr Corbett advised her that she could go to the Labour Court.

In September 2019, the complainant was aged 64 and three months.  At their meeting on the 23rd, she informed Mr Corbett that she intended to continue working after age 65.  She claims that Mr Corbett told her that the respondent had other ways and means to terminate her employment and that she could be made redundant.  It appears that the discussion on redundancy moved on quite quickly and Mr Corbett informed the complainant that they would like her to leave on good terms and that he would confirm an end date soon.  At a meeting a week later, on Wednesday, October 2nd, Mr Corbett confirmed that the complainant’s role was redundant and that, if she wished, she could leave immediately and be paid in lieu of notice.  On Friday, October 4th, Ms H gave her a letter from Mr Corbett, notifying her that her employment would end on November 1st due to redundancy.  When she did not attend work the following week, she received a letter on October 11th, telling her that her employment was terminated with effect from that day.

Mr Collins provided an outline submission on behalf of the respondent.  In 2019, with 36 employees, the school where the complainant worked was operating at a loss.  Enrolments were down from 125 students in 2015, to 93 students in 2019 and, without some measure to reduce costs, the school was at risk of closure.  In May that year, John Corbett, a retired HR professional, was engaged to carry out a review of staffing.  At the end of Mr Corbett’s assignment, 14 jobs were made redundant.  The complainant’s role was the first to be identified for redundancy.

Mr Collins’s submission notes that the complainant’s job was that of a receptionist, answering the phones and the front door.  When her job was made redundant, a phone system was installed to by-pass the main switchboard.  With the widespread use of mobile phones, staff are generally contacted on their mobile phones and not through the school’s switchboard.  The number of people calling to the front door was minimal and the door is now answered by the nearest person.

The respondent denies that the complainant was replaced in September 2019 by a younger person in the role of a general administrator.  In his submission, Mr Collins said that the complainant met Mr Corbett on at least five occasions before her employment was terminated.  In conclusion, Mr Collins said that the €11,400 paid to the complainant in redundancy exceeded the amount which she would have been paid in wages if she had remained at work up to her 65th birthday, at which time, she was required to retire.

Evidence of the Human Resources Consultant, Mr John Corbett

Mr Corbett summarised his experience in human resources roles in various companies until his retirement in 2015.  He now works as an independent contractor.  He said that he started his career as a teacher and that he has been the chairman of boards of management of two schools for 20 years. 

In 2019, Mr Corbett said that he was asked by the school principal to examine the staffing at the school.  He said that the staff numbers did not reflect what was required and he was brought in to see what could be changed and to deliver the most cost-effective outcome.

Mr Corbett described the management structure.  The director had four reports comprising a general manager, a head of procurement, a chief financial officer and a head of academics.  He said that he identified the head of procurement and the head of academics as not essential and these jobs were made redundant.  The chief financial officer left at the end of 2021 and has not been replaced.  He said that two accounts clerks were also made redundant.

Mr Corbett said that the complainant was employed in the role of receptionist, with occasional other duties, which he said were “not significant.”  He said that he understands that the complainant used to be at a desk in the front hall, but that she was re-located to an office.

Mr Corbett said that the job of telephonist has faded and that people contact staff by mobile phone.  He said that anyone who is available answers the door, but that it is usually answered by the general manager.  He said that, apart from deliveries of post, there are very few visitors to the front door.  Mr Corbett said that, since the rationalisation, the general manager does everything that needs to be done.

Mr Mallon asked Mr Corbett if the decision to make the complainant’s job redundant had anything to do with the grievance she submitted about Ms H in February 2019.  He said that the grievance preceded his involvement in the school and that the redundancy had nothing to do with that dispute.  Referring to the complainant’s allegation that Mr Corbett said that the respondent had “other ways and means” apart from retirement, of terminating her employment, Mr Corbett said that he was assigned to deal with the issue of costs and that the complainant’s job was the first of 17 to be made redundant.  Her job has not been replaced. 

Mr Corbett said that the redundancy process lasted from late May until the end of June 2020.  He said that from the onset of Covid-19 in March 2020, all the students went home and were learning remotely until June.  By September 2020, he said “the redundancies were all done.”

Regarding the consideration of an alternative role for the complainant, Mr Corbett said, “we looked at all those things” and that there was no alternative.  He said that the number of employees was reduced from 36 to 22.  Of the 14 jobs made redundant, apart from the complainant, they included a nurse, two accounts staff, two people in facilities, the academic manager, the head of procurement and some teachers.

Cross-examining of Mr Corbett

Mr Corbett said that he did not tell the complainant that her job was at risk of redundancy, but that he advised her that her job would be made redundant.  He agreed with Ms O’Connell that he did not consult with her about the prospect of redundancy.  He said that he had a discussion with her and told her that her job would be made redundant.  He said that she was upset and she didn’t return to work.

Referring to the meeting he had with the complainant on September 23rd 2019, Mr Corbett said that the description of this meeting as it is set out in the complainant’s submission is “not wildly inaccurate.”  He said that he informed the complainant at the meeting that her job was redundant.  

Ms O’Connell referred to the organisation chart for the school in which the complainant’s role is described as “academy secretary.”  Ms O’Connell said that Mr Corbett appears to have been informed about the issue between the complainant and Ms H.  She referred to Mr Corbett’s evidence that the general manager, Ms H, now does the work that the complainant used to do.  Ms O’Connell asked Mr Corbett about the new person who was appointed as a general administrator in September 2019.  Mr Corbett said that the purpose of this job was to provide administrative support for the girls’ and the boys’ schools.  He said that the job was made redundant in May or June 2020.

Mr Corbett said that, in consultation with the school director, he decided which jobs were to be made redundant.  He said that the redundancies were implemented on a compulsory and voluntary basis.  With regard to the complainant’s role, he said that he thought that there was no necessity for a receptionist.  He said that the redundancy programme was impacted by the Covid-19 pandemic because the school was closed from March to May 2020.

Ms O’Connell referred to the meeting of October 2nd 2019 that the complainant had with Mr Corbett and the description of that meeting which is in her submission.  Mr Corbett said that he wouldn’t “nit-pick” about how the meeting was described in the submission.

When he was asked by Ms O’Connell if he was aware that he wasn’t following the correct procedure when he made the complainant’s job redundant, Mr Corbett said that he “would have operated doing redundancies through unions,” and that he would have consulted with unions.  He said that he was “used to doing it in a different way.”

Before he finished giving his evidence, I asked Mr Corbett why the complainant was not considered for the new role of general administrator, which was filled in July 2019.  Mr Corbett said that the purpose of this job was to provide administrative support across the girls’ and boy’s schools.  He said that the primary responsibility of the job was to be in contact with the parents of the students and he said that the complainant hadn’t got the IT skills required for the role.  He said that he did not give any consideration to the possibility that she could be trained to do the job.

In response to further questions from Mr Mallon, Mr Corbett said that the complainant’s job was to answer the phone and to receive guests at the girls’ school.  He said that she had no involvement with the boys’ school.  The person recruited in July 2019 was capable of using social media to communicate with parents.  That role was made redundant in May 2020.

Summary of the Respondent’s Submission

At the end of the hearing, Mr Mallon submitted that what occurred on October 3rd 2019 when the complainant was dismissed was “a straightforward redundancy.”  He said that it is evident that the establishment was under pressure as a result of the fall-off in student numbers.  Between October 2019 and June 2020, half of the respondent’s employees were made redundant.  Mr Mallon submitted that there has been “a lot of irrelevant evidence” and that it is undisputed that the complainant’s main job was as a receptionist.  Her said that her job was part of the general administration of the school.

Mr Mallon said that the job of the person recruited in July 2019 is not relevant, because she was hired to work across three schools.  Her job was made redundant in May 2020.  If the complainant had an entitlement to that job, it was gone in May.

Mr Mallon suggested that, “if we hadn’t got an unfortunate working relationship, there would be nothing in this case.”  He said that the reality is that the school was in danger of going out of business.   

It is the complainant’s case that the redundancy of her job was not genuine and the respondent did not follow any procedure in respect of her dismissal.  Her dismissal was unfair for the following reasons:

1.              She was never put at risk of redundancy;

2.              The respondent did not explain the basis for her selection for redundancy;

3.              There was no consultation with the complainant regarding the redundancy of her role;

4.              The was no discussion about an alternative to redundancy or about any possibility of avoiding redundancy;

5.              The complainant’s role was not redundant and the respondent hired a younger person to do an administrative job just two months earlier;

6.              The respondent used redundancy to avoid having to give her nine months’ notice of her retirement, as set out in the employee handbook;

7.              Redundancy was used by the respondent as “a cloak” to hide the real reason for the complainant’s dismissal.

Legal Precedents

Ms O’Connell submitted four legal precedents as authorities for her case that the dismissal of the complainant on the ground of redundancy was unfair.

Margaret Griffin v John Spicer & Company, Navan[1]

In this decision of the Employment Appeals Tribunal (EAT) in 2009, the Tribunal found that the employer had not acted fairly and reasonably in respect of Ms Griffin’s redundancy and that there was “no serious or worthwhile consultation” with her before she was made redundant.

Gillian Free v Oxigen Environmental[2]

Reiterating the findings of previous Tribunals, in this decision in 2012, the EAT again found that there had been no serious or worthwhile consultation with Ms Free before her job was made redundant.

JVC Europe Limited v Jerome Panisi[3]

The concluding sentences of paragraph 5 of the Panisi decision highlights the onus that is on the employer of proving that the dismissal of an employee is not unfair:

“In an unfair dismissal claim, where the answer is asserted to be redundancy, the employer bears the burden of establishing redundancy and of showing which kind of redundancy is apposite.  Without that requirement, vagueness would replace the precision necessary to ensure the upholding of employee rights.  Redundancy is impersonal.  Instead, it must result from, as s.7(2) of the Redundancy Payments Act 1967, as amended, provides, ‘reasons not related to the employee concerned.’  Redundancy, cannot, therefore be used as cloak for the weeding out of those employees who are regarded as less competent than others or who appear to have health or age-related issues. If that is the reason for letting an employee go, then it is not a redundancy, but a dismissal.”

Oscar Mielczarek v Adrian Lee Services Limited[4]

Finding that Mr Mielczarek was unfairly dismissed, the Tribunal awarded him €200,000 in compensation.  Reaching this decision, the EAT took account of the fact that there was no prior discussion with Mr Mielczarek before he was made redundant, that there was no consideration of any alternative to redundancy and that the redundancy was not genuine.  The Tribunal also looked at the decision to dismiss Mr Mielczarek against the background of antagonistic relations between him and his employer and concluded that he was dismissed for issues related to his performance, “under a cloak of redundancy.”

In her submission, Ms O’Connell provided me with details of the efforts that the complainant made to find work after she was made redundant.  She immediately registered with her local Intreo Office to seek help with finding a job.  Her entire career has been spent in academic settings, but no suitable jobs were available.  In March 2020, with the onset of the Covid-19 restrictions, very few employers were hiring and, due to the complainant’s age, she had to look for remote work.  She didn’t find any work and, since the easing of restrictions, she has registered with job sites, and although, up until now, she hasn’t found another job, she remains hopeful. 

Evidence of the Complainant

The complainant said that she started in the girls’ school in 2009 as a receptionist.  In 2011, she took on more responsibilities, including admissions.  Since then, her duties have expanded.  Ms O’Connell asked the complainant about a job description which she included in her book of documents for the hearing.  The complainant said that this was given to her by Ms H, when she had a meeting with her regarding her job.  The complainant’s title is given as “Academy Secretary with Woodlands Academy” and under the heading, “Overview,” it states:

“The Academy Secretary will have responsibility for the functioning of the Reception Office.  They will work closely with the General Manager to support them with the administrative aspects of the many duties and functions required within the Academy.”

The job description lists 15 “reception and operational duties,” mostly associated with answering the phone and the door, passing on messages, receiving guests, distributing post, booking taxis, ordering stationary and arranging flowers.  Under the heading, “Event Duties,” the job description states that the academy secretary co-ordinates and plans the confirmation ceremony and that she is the event co-ordinator for the end-of-year closing ceremony.  She is also required to manage and co-ordinate taxis for the family day.

Under a third heading, the academy secretary provides administrative support to the general manager and the “consecrated ladies,” who are the nuns who work in the school.  These tasks are associated with students’ applications, departures and arrivals, travel documents, management of passport and visas, booking weekend events, managing the school database, binding and laminating documents and supporting the general manager with filing and photocopying.  The academy secretary is required “to be prepared to do any other administrative support duties appropriate to the position as assigned by the General Manager or Director of the Academy.”

The complainant said that she found it very sad to be described as a receptionist when she did so many other things, including the following:

1.              Before a nurse was employed, the complainant was responsible for all medical issues.  Following the appointment of the nurse, she co-operated with her regarding the students’ medical issues, making medical and dental appointments and filling prescriptions;

2.              Arranging birthday presents for students;

3.              Dealing with child protection requirements and liaising with Túsla;

4.              Renewing passports and booking tickets for holidays;

5.              Liaising with the church in preparation for confirmations;

6.              Keeping a record of exam grades;

7.              Looking after the girls on their break on Wednesdays;

8.              Breakfast and lunch supervision;

9.              Helping the accounts department with students’ banking;

10.          Contacting parents about payments;

11.          Being a daily point of contact for parents;

12.          Working on the end of year closing ceremony;

13.          Supervising classes if teachers have not arrived;

14.          Responsibility for swimming, basketball and tennis clinics and co-ordination of all sports;

15.          Writing reports for parents.

Describing her initial meeting with Mr Corbett, the complainant said that she met him first in June 2019, and she understood that he was taking over from the previous HR manager.  She said that she told him about the grievance she submitted concerning how she was treated by Ms H on February 8th.  She said that she told Mr Corbett that she wanted the issue resolved.   

The complainant said that, when she returned to school in September 2019, a new administrator was in place in Ms H’s office.  The staff asked her if she was retiring, which she found upsetting.  At a meeting on September 23rd, the complainant said that she told Mr Corbett that she was very happy in the school and that she didn’t want to retire for a few more years until her husband retired.  Mr Corbett replied that the normal retirement age is 65.  She said that Mr Corbett replied, “there are ways and means” and that one way is redundancy.  The complainant said that Mr Corbett said that he would let her know.

The complainant said that she asked Mr Corbett if she could speak with the director of the school about the plan to make her job redundant.  He said that they didn’t want to talk about it.  He said that it was decided back in June. 

On October 2nd, the complainant had another meeting with Mr Corbett.  On this occasion, she was accompanied by the facilities manager.  Mr Corbett said that he would let her know in a few days when her employment would end.  She said that Ms H came to her office on October 4th and gave her a letter.  In the letter, Mr Corbett confirmed that on November 1st, she would “exit the company though the redundancy process” and that she would be entitled to a payment of €11,400.

The complainant said that she couldn’t go to work the following Monday, because she was upset and embarrassed.  Her employment was then terminated on October 11th.

The complainant said that she was given a copy of the company handbook in December 2018 and that this contains a provision that employees will retire at age 65.

On the date of this hearing, May 24th 2022, the complainant had not managed to find another job.  She said that she has tried to find work, “every morning and evening.”  In April 2022, she applied for a job with the respondent, but she got no reply.

Cross-examining of the Complainant

Mr Mallon referred to the job description which the complainant produced in evidence.  He suggested that the tasks listed are appropriate to a receptionist.  The complainant said that she got this job description on February 28th 2018, when she met Ms H and the HR manager about her job.  She said that she was disappointed because, although she was given a new job title, the job description did not include all that she did.

The complainant agreed with Mr Mallon, that, before her employment ended, she no longer booked medical appointments for the students.  Mr Mallon said that the graduation and confirmation ceremonies take place once a year.  The complainant described the work associated with those events, such as arranging the church and event venue, contacting parents and getting birth certificates.  She said that the end of year ceremony took months to work on, finding a venue that would accommodate 500 people, managing a budget, dealing with the accountant, menu planning, seating plans and decorations.  At the event itself, she went from table to table, ensuring that parents and students were taken care of.

Mr Mallon referred to the report of the external HR manager, Ms R, in March 2019, in which she recommended that the complainant and Ms H engage in mediation.  He suggested to the complainant that she was disappointed when Mr Corbett told her that he could do nothing about her grievance.  The complainant said that Ms H didn’t want to go to mediation.  She said that she told Mr Corbett that she would like to speak to the director of the school. 

Mr Mallon asked the complainant about the meeting of October 2nd, at which Mr Corbett told her that her job would be made redundant.  The complainant said that Mr Corbett told her how much she would get in redundancy pay.

Mr Mallon referred to the fact that half of the staff in the school were made redundant before the end of the school year.  The complainant replied that only one other employee was made redundant on a compulsory basis.  Others were asked if they wanted to stay or go.

The Relevant Law

It is the complainant’s case that, when her job was made redundant in October 2019, it was not genuinely redundant and the tasks that she normally carried out were done by a new employee recruited in July that year.  She also claims that she was dismissed because her relationship with her manager had broken down.  Her complaint falls to be considered under the Unfair Dismissals Acts 1977 - 2015 and the Redundancy Payments Acts 1967 - 2014.

The Unfair Dismissals Acts 1977 - 2015

My task is to consider if, in terminating the complainant’s employment, the respondent breached section 6(1) of the Unfair Dismissals Acts 1977 – 2015, (“the UD Act”) which provides that a dismissal is unfair, “unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”  The burden of proof rests with the respondent to set out the substantial grounds justifying the dismissal.  Their position is that the complainant was dismissed due to redundancy because the job of receptionist was no longer required. 

Section 6(3) of the UD Act addresses the fairness or otherwise of a dismissal due to redundancy:

“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 of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or

“(b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to 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.”

Section 6(2) which is referred to above as “subsection (2)” addresses the termination of employment for reasons related to trade union membership, religious or political opinions or for having made a protected disclosure and other matters that are not relevant to the complainant.

For the complainant and her employer, “the circumstances constituting the redundancy” was the respondent’s need to reduce costs in the context of a reduction in student numbers in the school and the risk of closure if the finances were not addressed.

Section 6(7) of the UD Act provides that, in considering a complaint of unfair dismissal, as the adjudicator, I may have regard,

“(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 extent (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.”

There was no disagreement between the parties regarding the short engagement with the complainant that led to her dismissal.  On September 23rd 2019, she was informed by the consultant HR manager that the respondent was considering making her job redundant.  At a meeting with the complainant on October 2nd 2019, Mr Corbett confirmed that her job would be made redundant and that her employment would end on November 1st.  She received a letter to this effect on October 4th.

The Redundancy Payments Acts 1967 - 2014

The next step in my inquiry is to consider the definition of redundancy at section 7 of the Redundancy Payments Acts (“the RP Act”).  Section 7(2) sets out five definitions of redundancy and, for our purpose here, we need to concern ourselves only with the definition at subsection (c):

“…an employee who is dismissed shall be taken to be dismissed by reason of redundancy if, for one or more reasons not related to the employee concerned, the dismissal is attributable wholly or mainly to—  

“(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise[.]”

The respondent’s case is that, in September 2019, due to a reduction in student numbers from 125 in 2015 to 93 in 2019, there was a need to reduce costs and the most effective way to do this was to make several employees redundant.  In his evidence, Mr Corbett said that the decision to make the complainant’s job redundant was arrived at in June 2019 and that the complainant was the first of 14 jobs which were made redundant up to September 2020.  The respondent’s case is that a receptionist was no longer required and the remainder of the complainant’s duties were done by the general manager.

Was it Reasonable for the Respondent to Make the Complainant Redundant?

I understand the complainant’s contention that the redundancy of her job was not genuine.  In the months before her employment ended, her relationship with her manager had completely broken down and they were barely on speaking terms.  It is more than a coincidence that hers was the first job to be selected for redundancy.  The recruitment of a new administrative assistant in July 2019 contradicts the respondent’s job-cutting objective and the fact that the new recruit took on some of the complainant’s duties indicates to me that some of her job needed to be done on an ongoing basis.

Ms O’Connell referred to the seminal case of JVC Europe Limited v Panisi (footnote 4) in which Mr Justice Charleton noted the findings of the EAT in St Ledger v Frontline Distributors Limited[5] and the criteria of impersonality and change which are the hallmarks of a genuine redundancy.  In 2003, the decision of the EAT in this and other cases led to the amendment of section 7(2) of the RP Act and the insertion of the condition that redundancy is “not related to the employee.”  The focus of redundancy must, in the first instance, be on a job.  Its purpose is to eliminate a job or to effect change on a job and not a person. 

Before her dismissal, the complainant worked in the respondent’s school for eight years and she had a complete understanding of the school and the academic cycle of events.  She worked in schools for most of her career.  As a native of Mexico, she was fluent in Spanish and she was in daily telephone contact with the students’ parents in Mexico.  There was no evidence that she had a record of ill health or absenteeism and, aside from the breakdown in the relationship between her and Ms H, there were no complaints about her conduct or performance.

The complainant’s job description shows that her job was comprised of reception and telephone answering duties but also that she had various administrative responsibilities.  It is apparent that, in July 2019, a new employee was recruited to fill an administrative job while, at the same time, the respondent was planning to make the complainant’s job redundant.  The definition of redundancy at section 7(2)(c) provides that the work of an employee whose job is redundant may be done by other employees, but it does not permit an employer to recruit a new employee for that purpose. 

In every redundancy situation, it is incumbent on an employer to try to preserve the jobs of employees who want to remain in employment.  In the case of this employee, she was aged 64 and she had indicated a wish to remain at work after age 65.  It must have been apparent to the respondent that, following her dismissal, she was unlikely to find a job in a school, an environment she had worked in for most of her life.  I accept the respondent’s evidence that the administrator who started in the school in July 2019 was made redundant in May 2020; however, apart from his contention that that job involved administration across three schools and some social media work, the HR consultant, Mr Corbett provided no credible explanation why there was no discussion with the complainant about her suitability for this job and the possibility of training in the use of social media.  If she had been offered that job, she would have had the benefit of seven more months of employment and her departure could have been managed with more civility.

It was acceptable for the respondent to decide that it was no longer necessary for the complainant to do the receptionist aspects of her job; however, an employer seeking to cut jobs has a responsibility to consider alternatives to redundancy, and it is clear to me that, as an alternative, the complainant could have taken on other administrative work across the three schools and she could have been trained to do the social media work that the new employee was recruited to do.  Based on these findings, I am satisfied that the complainant was dismissed for reasons other than it being no longer necessary for her to do the work of a receptionist.  I accept as valid her argument that she was dismissed because of a grievance she had with the general manager and I agree with her that her job was not genuinely redundant.

Was the Process Fair?

In his evidence, Mr Corbett was honest regarding his experience of implementing redundancies.  He said that he mostly operated through unions and that he was used to making people redundant in a different way.  He agreed that the complainant was not informed that her job was at risk and that he did not consult with her, but he told her that her job was redundant.  I have already noted that no consideration was given to an alternative job, or to training that would enable the complainant to take on different duties. 

The complainant’s job as receptionist was such that she was in frequent contract with parents, students, teachers, other staff and service-providers.  She had a public-facing role in the school and after eight years in her job she was well-established and familiar to everyone.  On October 2nd 2019, she was informed that her employment would be terminated in four weeks.  I have no doubt that some managers were aware that the complainant and the general manager, Ms H, were not on good terms and the fact that a new employee was recruited in July 2019 and located in an office with Ms H must have made the complainant feel isolated and at risk.

On October 4th, the complainant was given notice that her employment would end on November 1st.  When she didn’t come to work on October 7th, she was summarily dismissed on October 11th, depriving her of an opportunity to come back to the school to say goodbye to her colleagues.  I find that the conduct of the respondent in these circumstances was unfair and not what is expected of a reasonable employer.

Conclusion

I have considered the written submissions and the evidence of both sides at the hearing of this complaint.  It is my view that the respondent acted unreasonably by selecting the complainant for redundancy and by failing to consider her for an alternative job or to provide her with training to do an alternative job, for which a new employee was recruited in July 2019.   I find that the respondent’s decision is in contravention of section 7 of the RP Act and the requirement for a redundancy to be for “…reasons not related to the employee concerned…”  I also find that the process that led to the complainant’s dismissal did not comply with fair procedures, particularly because there was no proper engagement with her regarding an alternative to redundancy.  In contravention of section 6(3) of the UD Act, I decide that her dismissal was substantively and procedurally unfair.

I have decided that this complaint is well founded.  In accordance with section 7 of the Unfair Dismissals Act, I must make an award of redress in the form or reinstatement, re-engagement or compensation, as I consider appropriate.  The complainant opted for reinstatement or compensation.  It is my view that, having regard to the conduct of the respondent concerning this former employee, compensation is the most practical form of redress in the circumstances.

I have taken account of the submission made by Ms O’Connell on behalf of the complainant.  I note that, on the date of the hearing in May 2022, the complainant had not taken up another job.  I find it surprising that, with her experience and her language skills, and in an environment of almost full employment, the complainant did not find another job, but I acknowledge that the impact of the Covid-19 pandemic presented challenges in that regard.    

In considering the amount to be awarded in redress, I have taken account of the fact that, seven months after she was dismissed, in May 2020, the person who was recruited to provide administration support to the respondent’s three schools was made redundant.  It is my view that, if the new employee had not been recruited, and if the complainant had been made redundant in May 2020, her dismissal would not have been unfair.  Based on these findings, I decide that the respondent is to pay the complainant compensation of €17,000, equivalent to approximately seven months’ gross pay.  As this award is in the form of loss of earnings, it is subject to the normal statutory deductions.  This compensation is separate from and in addition to the amount of €11,400 paid to the complainant as statutory redundancy. 

Contrary to section 6(1) of the Employment Equality Act 1998, the complainant submits that the respondent discriminated against her on the ground of age.

In 2018, the respondent swiftly addressed a complaint made by Ms H against the complainant, but, the following year, they refused to investigate the complainant’s grievance against Ms H.  The complainant submits that this is because Ms H is younger than her.  Ms H was not required to engage in mediation, or to participate in an investigation into her treatment of the complainant.  The complainant was advised that she could take her grievance to the Labour Court, whereas Ms H’s complaint was investigated.

The fact that a person younger than the complainant was recruited to fill an administrative vacancy, without giving the complainant an opportunity to apply for the role, is indicative of discriminatory treatment.  No explanation was given as to why this new role was necessary.  The new employee did similar work to the complainant, apart from certain tasks that she refused to do.  She was given a new computer, which the complainant had repeatedly requested for her own job.  The new employee was given some of the complainant’s duties and she carried them out while the complainant was still employed.  The only difference between the new employee and the complainant is that the new employee is younger than the complainant.

A mandatory retirement age was imposed on the complainant, although she had no written contract of employment and, during her employment, she was never informed about a retirement age.  She is aware that a night duty receptionist worked until she was 68 and a lady worked in the laundry until she was 70.  The handbook which contains a reference to retiring at age 65 was only given to the complainant in 2018, more than seven years after she started in her job.  It is the complainant’s case that Mr Corbett’s initial intention to require her to retire at age 65 was discriminatory.

Ms O’Connell submitted that the complainant has established a sufficient factual basis for me to presume that she was discriminated against.  She asked me to consider the following legal precedents which, she claims, support the complainant’s case:

Cork City Council v McCarthy[6]

In this decision of the Labour Court, it was held that it is adequate for a complainant to show that discrimination is “within the range of influences which can reasonably be drawn” from the facts.

ICTS (UK) Limited v Magdi Ahmed[7]

In this decision, the Labour Court stated that the evidential burden placed on a complainant may be discharged by providing unsupported oral evidence of discriminatory acts.  Ms O’Connell submitted that, in light of this decision, the complainant’s uncorroborated evidence may be adequate to discharge the evidential burden imposed by section 85A of the Employment Equality Act.  She argued that there is sufficient extraneous evidence to support the complainant’s case.

Gleeson v Rotunda[8]

In this case, the Labour Court accepted Ms Gleeson’s evidence was that she had been asked inappropriate questions at an interview.  It went on to consider if the employer had discharged the burden of proving that discrimination had not occurred.  The Court’s findings in this case show that the respondent has a significant burden to demonstrate that discrimination has not occurred and that this burden can only be discharged on production of relevant evidence.

Fagan v The Revenue Commissioners[9]

Ms O’Connell submitted that this decision of the former Equality Tribunal is of persuasive authority in support of the complainant’s contention that the respondent cannot merely rely on an assertion that it did not discriminate in order to discharge the burden of proof, but they must provide independent corroboration of the processes they followed.

A Female Employee v A Printing Company[10]

The female employee claimed that she was discriminated against when a male colleague was promoted.  The Tribunal agreed and was critical of the failure of the respondent to keep records of its deliberations regarding the job application process.

Igen Limited v Wong[11]

Recommending the outcome from this decision of the UK Court of Appeal, Ms O’Connell referred to its reliance on the “Barton Guidance,” set out originally in 13 principles in Barton v Investec Securities Limited.[12]  The issue in that decision concerned discrimination on the ground of sex.  Ms O’Connell’s submission contains a summary of each of the principles which I have reviewed as part of my enquiry into the complainant’s claim of discrimination on the age ground.

Quigley v Health Service Executive[13]

To avoid discrimination on the age ground, in this case, the Labour Court highlighted the importance of the existence of a contractual provision in the contract of an employee who is required to retire at a particular age.

Evidence of the Complainant

In 2018, the complainant said that Ms H put in a complaint about her and she had to apologise.  When she complained about Ms H a year later, she was told to forget about it.  The complainant said that she asked many times about mediation, but no one did anything about it.  She said that she felt that she wasn’t important because she was older than Ms H. 

In 2018 or 2019, when she asked for a new computer, the complainant said that she was told that it was in the budget for next year.  She said that she was given the run-around and that Ms H and another manager laughed when she told them that she couldn’t see her keyboard.

When the new employee joined as administrative assistant in July 2019, she got a new computer.  This employee knew how to use Facebook.  When the new employee joined, the complainant said that Ms H gave her less and less to do.

Cross-examining of the Complainant

Mr Mallon pointed out to the complainant that she didn’t retire from her job at the school.  He asked her how her complaint that Ms H wouldn’t participate in mediation is related to her age.  The complainant said that she felt that she wasn’t taken seriously.  She said that her grievance wasn’t addressed and she felt like it was because of her age.

In response to further questions from Ms O’Connell, the complainant said that Ms H was believed more than her and that she felt very bad.  She thinks that this is because Ms H is much younger than her.

It is the respondent’s case that the complainant was not discriminated against, nor was she replaced by a younger person.  The complainant’s job was redundant because the tasks of answering the phone and the door were no longer required or were done in a different way. 

Mr Mallon referred to the burden of proof which is on the complainant to show that, on the basic facts, she was discriminated against.  He said that the Labour Court has consistently held that, to establish this proof, a complainant must make more than a simple assertion.  The fact that Ms H is younger than the complainant is irrelevant.

Mr Mallon said that there can be no case that the complainant was subjected to a mandatory retirement age, because she did not retire.

The Legal Framework

The legal framework prohibiting discrimination on nine specific grounds is set out at section 6(1) of the Employment Equality Act 1998 – 2015 (“the Act”). 

“…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 sub-section (2), in this Act, referred to as the ‘discriminatory grounds’…”

At sub-section (2)(f), the “the age ground” islisted as one of the nine discriminatory grounds.  The complainant alleges that she was discriminated on the age ground for three reasons:

1.              Because her employer refused to investigate a grievance between her and her manager, who is younger than her;

2.              Because a younger person was recruited to provide administrative support to three of the respondent’s schools;

3.              Because the respondent wanted her to retire at age 65.

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“85A – (1) Where in any proceedings, facts are established by or on behalf of a complainant, from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the responsibility is on the complainant to show that, based on the primary facts, she was treated less favourably than a younger person.

The nature of these primary facts was clearly set out in the decision of the Labour Court in Arturs Valpeters v Melbury Developments[14].  Here, the onerous nature of the burden of proof is clearly set out:

“This requires that the 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 they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden of proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

For the complaint of discrimination to succeed, I must find that, on the balance of probabilities, the complainant has demonstrated that, because of her age, the respondent treated her less favourably than a younger person would have been treated.  In the appeal to the Labour Court of Mary Margetts v Graham Anthony & Company Limited[15], Ms Margetts argued that she was discriminated against on the grounds of her marital status, her family status and her age; however, the point made by the Chairperson of the Court, Ms Jenkinson, is relevant to the case we are considering here:

“The law requires the complainant to establish facts from which it may be inferred that discrimination has taken place.  The appellant must, on the balance of probabilities, prove those facts from which such an inference can be drawn.  When these facts are established to the satisfaction of the Court, the onus shifts to the respondent to show, on the balance of probabilities, that it did not discriminate against the appellant.  The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination.  The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

The Primary Facts

We know from our deliberations under the Unfair Dismissals Act above that the complainant had a grievance against her manager.  She claims that the respondent did not investigate her grievance, because her manager was younger than her.  From the scant evidence provided by the respondent at the hearing, it is apparent that they did not investigate the complainant’s grievance because Ms H refused to participate in an investigation.  The HR consultant then decided that the most efficient way of dealing with the problem was to select the complainant’s job as the first job to be made redundant.

The second aspect of discrimination arises from the decision of the respondent to recruit a new employee in an administrative job in July 2019.  The complainant asserted that this employee was selected to do some of the work that she was employed to do and that she was required to communicate with parents on social media.

Finally, the complainant argues that she was discriminated against because the respondent expected her to retire at age 65.

Findings

None of the facts presented by the complainant indicate that the decision of the respondent not to investigate her grievance was because she was older than her manager.  Considering the evidence of both sides, it is clear to me that an investigation was not initiated because Ms H refused to participate in an investigation.  It is clear also that the respondent considered that an investigation was unnecessary when they planned to make the complainant’s job redundant.

Moving now to the complainant’s claim that she was discriminated against when some of her work was assigned to a younger employee recruited in July 2019.  While the new employee was younger than the complainant, nothing turns on this fact because most new recruits are likely to have been younger than her (she was aged 64).  From my examination of the facts, it is apparent that the new employee was recruited because there was no communication between the complainant and her manager, and the respondent planned to transfer a proportion of the complainant’s job to the new employee.

In his evidence, Mr Corbett said that one of the main reasons the complainant was not offered the job of administrative assistant in July 2019 was because she was not experienced in the use of social media.  Considering the general view that use of social media is a skill more associated with young people compared to older people, it is my view that the complainant was indirectly discriminated against when she was not considered for this job.  Because she was older, it appears that the respondent assumed that she would not be capable of using social media and because she was approaching the “normal” retirement age, no consideration was given to providing her with training in this area.

The complainant’s third claim of discrimination is the respondent’s direction to her that she was expected to retire at age 65.  Mr Mallon argued that, because she did not retire, no discrimination occurred.  I disagree with this argument, because it is clear that the respondent considered that the complainant was close to retirement.  In their submission, it was argued that the complainant suffered no loss of earnings because the €11,400 she received in redundancy pay “…exceeded the amount of the salary she would have received up to her 65th birthday at which time, she was required to retire.”  It seems that, from the respondent’s perspective, the proximity of the date of retirement provided some justification for the decision to make the complainant’s job redundant. 

Conclusions

I accept the complainant’s evidence that she was treated less favourably than the new, younger employee, not because that employee was younger, but because the respondent decided that, due to her age, the complainant was incapable of being up-skilled to work on social media.

I am satisfied also that the respondent’s insistence that the complainant was due to retire at age 65 was discriminatory.  No justification was given for this insistence, and the respondent did not rebut the complainant’s evidence that a night receptionist and a woman who did laundry work were permitted to work until age 68 and 70 respectively.  It is immaterial that the complainant did not retire, but that she was dismissed.  I am satisfied that the failure of the respondent to address her request to remain in employment after the age of 65 was discriminatory.

I am satisfied that the facts presented by the complainant meet the test set out in the Valpeters decision (footnote 14) and that they are of “sufficient significance to raise a presumption of discrimination.”  The reasons given by the respondent for not considering the complainant for an alternative role where she would be required to work on social media, and for terminating her employment shortly before she was expected to retire are not adequate as a defence to her claim that she was treated differently because of her age.  I find therefore, that, contrary to section 6 of the Employment Equality Act, the respondent discriminated against the complainant on the ground of age.   

In accordance with section 79 of the Employment Equality Act, I decide that the complainant was subjected to discrimination on the age ground.  In accordance with my powers of redress under section 82 of the Acts, I order the respondent to pay her compensation of €7,500 for the distress that she suffered and for the effect of discrimination.  This award is for the infringement of the complainant’s statutory rights and is not subject to deductions for PAYE, PRSI or USC.

Under this complaint of penalisation, Ms O’Connell submitted that the complainant was subjected to discriminatory and derogatory treatment by her manager about whom she raised a grievance in February 2019.  The respondent was informed on several occasions by the complainant of the impact of the failure to address her grievance was having on her health and well-being and the difficulties of working with Ms H in these circumstances.

Ms O’Connell submitted that the complainant was penalised by not being allowed to work her notice.  The respondent notified the complainant that she would be paid her wages until the end of October 2019, but it had no entitlement to pay her in lieu of notice.  The complainant wasn’t given the option of working her notice.  This is the detriment complained about.  This failure on the part of the respondent made the complainant feel as if she had committed some form of gross misconduct.  She had no opportunity to say goodbye to her colleagues with whom she had built up good relationships since she joined the school in 2009.  Ms O’Connell said that it is apparent that Ms H did not want the complainant in the school any longer.

Ms O’Connell submitted that the complainant meets the “but for” test set out in the decision of the Labour Court in O’Neill v Toni and Guy Blackrock Limited[16] and that, “but for” raising her concern about how she was treated by Ms H, she would not have suffered the detriments under section 27(3) of the Safety, Health and Welfare at Work Act.

Evidence of the Complainant

The complainant said that, following the meeting of October 2nd with Mr Corbett, at which he informed her that her job was redundant, Ms H stopped speaking to her.  Two days later, Ms H brought her the letter from Mr Corbett.  The complainant said that she opened the letter and that Ms H “turned around and went.”

The complainant said that Ms H had a problem working with her.  She said that she only spoke to her to tell her what to do and that there was no conversation. 

Mr Mallon referred to the definition of penalisation at section 27(2) of the Health, Safety and Welfare at Work Act 2005.  He said that penalisation may be in the form of dismissal or demotion.  He argued that the complainant has produced no evidence that she was penalised, but she claims that Ms H didn’t speak to her.

Mr Mallon argued that the complaint of penalisation is speculative, and that the complainant was the person who, in 2018, had to apologise to Ms H for calling her a liar.  This led to a less than satisfactory working relationship.  Mr Mallon said that, if the complainant has been left short of pay in lieu of notice, that the respondent will remedy this loss.

Section 27(2) of the Safety, Health and Welfare at Work Act 2005 sets out a definition of penalisation:

27.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

While the failure of the respondent to investigate the complainant’s grievance of February 11th 2019 was very poor in terms of people-management, I disagree with her claim that this failure amounts to penalisation for submitting a grievance in the first place.  I am satisfied that the penalisation that the complainant complains of is the termination of her employment on October 11th 2019.  I am further satisfied that this complaint has been aired under the Unfair Dismissals Act and that it should not be subject to another investigation under the heading of penalisation. 

Also, under the heading of penalisation, Ms O’Connell argued that the complainant was not given her full entitlement to notice and Mr Mallon conceded that this may be the case.  I note however, that, on October 4th, the complainant was given a letter dated October 3rd, confirming that her employment would end on November 1st.  As October 4th to November 1st is exactly four calendar weeks, the complainant received her entitlement to four weeks’ notice and no detriment arises in respect of notice.

I decide that this complaint is not well-founded.

Unfair dismissal, redundancy, discrimination on the age ground