Complainant

Respondent

Parties

Jane Burton

Knights of Old Group

Representatives

Self-represented 

Lars Asmussen BL instructed by Kennedys Law solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00040836-001

04/11/2020

The complainant asserts that she was unfairly dismissed by the respondent; the respondent denies this and asserts that the complainant’s employment ended lawfully on grounds of redundancy.

The respondent submitted that the complainant’s employment ended by reason of redundancy, and that this was a substantively and procedurally fair dismissal. The respondent is a UK-based logistics and warehousing firm, with one site in Ireland. The complainant was an internal sales representative, and her role was to generate leads. The complainant was initially furloughed due to the pandemic and was later made redundant.

Nick Bithell, HR director gave evidence under affirmation. He outlined that the complainant reported to the marketing and communications manager, as stated in her contract of employment. The complainant was furloughed because of reduced volumes in business arising from the pandemic. The complainant had not disputed the basis of her being furloughed. Volumes had declined by 40% so the respondent wrote to staff on the 8th June 2020 to warn of potential redundancies. While the furlough had given the respondent breathing space, the future was still uncertain, and the respondent had to look at what to do to survive.

Mr Bithell outlined that the accounts refer to an operating loss of £1.6 million. He drafted a spreadsheet of possible redundancies and allocated staff to pools. The complainant was initially in the administrative pool but later moved to a pool where she was the only employee. They had a consultation meeting with the complainant on the 10th June 2020. While the complainant was surprised, she accepted the grounds of redundancy. Later, the complainant challenged her being pooled in a pool of one, so he had to continue the consultation.

The witness outlined that the complainant was offered driver roles and an office-based role at the respondent offices in Kettering. The LinkedIn issue was subject to a separate grievance. While the marketing and communications manager had accessed the account, she was not taking over the complainant’s role. The marketing and communications manager would not be availing of LinkedIn to contact Irish businesses and her role was with UK businesses. Mr Bithell outlined that the complainant never put forward any alternative roles and did not appeal the decision to make her redundant.   

In cross-examination, Mr Bithell did not accept that the complainant reported to him and said that she reported to the marketing and communications manager. Volumes were down because of the pandemic and drivers furloughed.

Ms Bainbridge, HR Manager gave evidence under affirmation. She confirmed that the meeting of the 10th June 2020 was a formal consultation and sent the complainant the notes of the meeting to ensure the complainant understood this.

Ms Gray, marketing and communications manager, outlined on affirmation that she was the complainant’s line manager. She discussed with the complainant the best approaches to make to potential clients, as well as providing text. She had full access to the complainant’s LinkedIn account and had spoken to the complainant’s husband about this (he was the respondent operations manager, also made redundant). The respondent had not used LinkedIn to target Irish customers following the ending of the complainant’s employment and the marketing and communications manager used another account to contact UK clients. She accessed the complainant’s LinkedIn account on the 16th April 2020 but chose not to pursue this. The complainant was in a pool of one because she was the only business development person in Ireland, and the marketing and communications manager had a broader role. The complainant put it to the marketing and communications manager that she had sent 150 messages and made 147 posts from the complainant’s LinkedIn account.

In closing, the respondent outlined that the work had ‘ceased or diminished’ (subsection b) or was being done by others (subsection c), so this was a redundancy in accordance with section 7 of the Redundancy Payments Act. It was submitted that LinkedIn was not being used for Irish business. The procedure was thorough and fair, and the complainant had the opportunity to comment on pooling and this was reassessed by the HR Director. The respondent reached a reasonable conclusion that the marketing and communications manager was the complainant’s line manager. There had ben redundancies across the company. The complainant had made insufficient efforts to find employment and had received PUP. If an award was made, the redundancy lump sum and notice pay paid should be deducted.

The complainant gave evidence under affirmation. She outlined that the decision to end her employment was made on the 26th March 2020 when she was placed on lay-off. Her role was sales in Ireland around the time of the respondent’s launch of an Irish branded logistics identity. She contacted potential clients through her own LinkedIn account. She paid to have a Premium account and the respondent paid for the Sales Navigator functionality. She had asked for a new contract of employment to be issued to reflect her changed role, but this did not take place.

The complainant said that the marketing and communications manager was doing her role. The complainant did not have access to the systems while on lay-off. She was surprised at the redundancy as Ireland was busy. She referred to the applications she sent to find alternative employment, and she had not found other work.

In cross-examination, the complainant said that she had initially sold into the UK. She had believed what the respondent said about the economic difficulties it faced in March 2020. It was put to the complainant that the accounts showed that the respondent was in ‘dire straits’; she did not have a comment to make. She had decided that she should not be in a pool of one from when she realised that the marketing and communications manager had been accessing her LinkedIn account. She said that this occurred until the 15th May 2020, when the complainant changed her password. The marketing and communications manager should have been in the business development pool with the complainant as they were both sales executives. It was put to the complainant that her functions were absorbed into the UK; she accepted this but said that this had taken place on the 30th March 2020. She had not appealed the outcome as there was no point. She said that the respondent was meant to be in trouble, but they were advertising for new employees and these advertisements referred to the company ‘growing’. She was on PUP following the ending of her employment. She applied for six roles and made a further six applications on LinkedIn.

This is a complaint pursuant to the Unfair Dismissals Act. The complainant asserts that she was unfairly dismissed from her employment on the 3rd September 2020. The respondent denies the claim, asserting that the complainant’s employment ended lawfully by reason of redundancy.

The complainant worked 20 hours per week and was paid €953.87 per month. She worked in a business development role, for example ‘cold calling’ potential clients, an exercise which took place via LinkedIn and no longer by phone, as previously done. The complainant outlined that she also did invoicing when the office was busy.

The complainant’s LinkedIn account played an important role in the hearing of this case. It was the complainant’s account and identified her as working in business development for the respondent. She is listed as having 4,287 followers. The complainant outlined that she paid to have a Premium account, while the respondent paid an additional subscription to give the account Sales Navigator functionality. What triggered the complainant to challenge the fairness of her dismissal was her becoming aware that her LinkedIn account was being used by a respondent manager to post messages, without the complainant’s knowledge or permission. The complainant asserts that this amounted to impersonation and identity theft. Whether or not this assertion is correct, it can be said that it is most irregular for a social media account of a person to be used without that person’s knowledge or consent, even where the account is related to the workplace. This is particularly the case as the respondent had an established social media presence, including on LinkedIn, as evidenced by the job advertisements cited by the complainant.

Even if the use of the LinkedIn account was, at best, irregular, the question in this case is whether the complainant was unfairly dismissed or was her employment terminated on grounds of redundancy.

Statutory background - Section 6 Unfair dismissal

Section 6(1) of the Unfair Dismissals Act provides that a dismissal shall be deemed unfair, unless there are substantial grounds justifying the dismissal.

Section 6(2) sets out circumstances where a dismissal will be automatically unfair if the dismissal was wholly or mainly due to those circumstances. Section 6(4) provides that a dismissal will not be an unfair dismissal if it was wholly or mainly due to the ‘redundancy of the employee’. It is well-established that redundancy has the essential characteristics of being impersonal and relating to change (see St Ledger v Frontline Distributors Ireland UD56/1994). Section 6(6) makes it clear that the burden of proof in section 6(4) is on the employer.

Section 6(7) allows for regard to be had to the reasonableness of the employer’s conduct and the employer’s adherence to any rules or Code of Practice. There is no specific Code of Practice addressing redundancies.

Section 8 – determination of claims

Section 8 provides for the determination of claims of unfair dismissal. Section 8(1)(c) sets out the duties of the adjudication officer, replicating the provisions of the Workplace Relations Act and other enabling statutes. Section 8(1)(c) provides:

‘An adjudication officer to whom a claim for redress is referred under this section shall —

(i) inquire into the claim,

(ii) give the parties to the claim an opportunity to be heard by the adjudication officer and to present to the adjudication officer any evidence relevant to the claim,

(iii) make a decision in relation to the claim consisting of an award of redress in accordance with section 7 or the dismissal of the claim, and

(iv) give the parties to the claim a copy of that decision in writing.’

Broken down, section 8(1)(c) requires the adjudication officer to inquire into the claim and in addition, to allow the parties the opportunity to be heard and also to present any evidence. The ‘duty to inquire into the claim’ was inserted into the Unfair Dismissals Act in 2015, as part of the consolidation and reform of employment and equality law.

Redundancy / unfair dismissal case law 

In Panisi v JVC Europe [2011] IEHC 279, the High Court held: “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.”

It is clear from section 8 of the Unfair Dismissals Act and the approach set out in Panisi v JVC Europe, there is an obligation on the adjudication officer ‘to inquire’ into the claim, in this case the basis of the dismissal. Moreover, there is a need to ensure that the employer discharges the burden of proof by showing, with ‘precision’, that a redundancy situation arose. It is established that once an employer can show that a redundancy situation arose, any selection criteria applied should not be second-guessed so long as they are rational and objective (and in compliance with section 6(3) of the Unfair Dismissals Act).

Correspondence

The complainant’s employment was terminated during the pandemic. The complainant was placed on lay-off on the 26th March 2020, which is when she said the respondent effectively decided that her employment would end. General correspondence was circulated on the 8th June 2020 regarding ‘potential redundancies’, referring to a 40% decline in overall demand, albeit that there had since been a recovery. It refers to 23 redundancies across four sites. It states that this was ‘essential for the long term survival of the company during these unprecedented times.’

In a telephone meeting of the 10th June 2020, the respondent informed the complainant that she was in a pool of one and her role was potentially redundant. This position was confirmed to her in the letter of the 10th June 2020. By email of the 17th June 2020, the complainant challenged her being assigned to a pool of one, specifically as the manager had been accessing the complainant’s LinkedIn account. At the meeting of the 23rd June 2020, the respondent referred to the drop in the volume of jobs to 8,000 per week. The complainant stated that she was happy to take the redundancy, but not in a pool of one. By letter of the 2nd July 2020, the respondent outlined that the manager would not be pooled with the complainant as she had additional and differing responsibilities to the complainant.

The letter of the 3rd September 2020 confirmed the complainant’s redundancy arising from the need to reduce costs and the number of employees, stemming from a reduction in overall activity. It referred to there being no suitable, alternative employment available to the complainant. It outlined that the complainant and the manager should not be pooled together, as the manager was the complainant’s line manager.

Records

The respondent submitted its financial statements for the year ending May 2020, finalised in March 2021. This referred to an operating loss of £1.6 million, and stated ‘the group are well positioned to secure significant additional business in this sector [contract distribution]’. This reflected the complainant’s evidence regarding her surprise at the decision to make her redundant given that it was busy. The company accounts set out that for the year ending 31st May 2020, non-distribution head count increased from 109 to 111.

As set out in the compliance emails, the respondent availed of the Temporary Wage Subsidy Scheme and there is no suggestion that it availed of the successor Employment Wage Subsidy Scheme. These were very significant State interventions in response to the unprecedented challenges posed by the pandemic. The purpose was to support employers who were ‘adversely affected’ by the pandemic and to keep staff on payroll, be they at work (in the workplace or working remotely) or on lay-off/furlough. The complainant was on lay-off/furlough, and received the alternative, Pandemic Unemployment Payment.

The landscape table (also attached to the TWSS compliance email) (page 177 of the respondent booklet) chart the number of jobs and palettes in the Irish business between October 2019 and December 2020. It shows a drop in business in April and May 2020, in line with the respondent’s evidence and the letter of the 8th June 2020. They show that business recovered from June 2020. By August 2020, the number of palettes surpassed the previous high of March 2020. By September 2020, the number of jobs surpassed the previous high, also March 2020.

As well as the danger to health and life, the pandemic in 2020 wrought uncertainty and, at least initially for some, a significant downturn in business. This was the immediate impact of the spread of the disease and the corresponding lock-downs. These were unprecedented and extraordinary circumstances, and the decision to end the complainant’s employment must be assessed in this light.

Application of the law to the facts

I appreciate the challenges faced by the respondent in 2020, in particular the initial ‘shock’ faced by the company in April and May 2020. It responded by placing employees in waves of 20 on furlough/lay-off. It, therefore, made immediate savings on salary costs and availed of the first iteration of the Irish wage subsidy scheme (but not the later iterations which came into force on the 1st September 2020). While the 2020/2021 accounts were not presented, the figures show that business was bouncing back by June 2020, surpassing previous performances by August (pallets) or September (jobs) 2020.

Whatever the reason given to commence the redundancy process on the 8th June 2020 (reduced volumes), this was no longer a factor of such significance by the 3rd September 2020. The complainant gave striking evidence that Ireland was busy, and the respondent was in the process of launching an Irish-branded business. While the business development function of a growing Irish-branded business could have been run from one of the respondent UK offices, the basis of the complainant’s redundancy and her pooling of one was geography; she was the only Irish-based business developer. The Irish side of the business was growing, and the complainant should have been in the mix for whoever continued to develop this business.

Accessing the complainant’s LinkedIn account was certainly irregular, but also indicated a priority for the respondent to contact potential clients and to maintain a professional social media presence. The respondent could have achieved this via its existing LinkedIn accounts, but the complainant had an established following and was associated with the respondent business. Whatever the rights and wrongs of someone other than the complainant using the complainant’s LinkedIn account, it showed that business development of the Irish side of the business continued to be important, including during the period of the deepest lockdown.

I, therefore, conclude that the respondent has not discharged the presumption in law that the dismissal was unfair. First, the basis of the redundancy process – reduced volumes – dissipated by June 2020 and was not a factor of significance in September 2020 when the complainant’s employment was terminated. Second, the basis of the complainant’s redundancy was geography; she was the only Irish-based business development employee. Given that there was a growing business in Ireland, she should have been pooled with others engaged in business development, even if the respondent decided that the Irish business role would be carried out in the UK. Third, accessing the complainant’s LinkedIn account without her knowledge or consent indicates that business development in Ireland was something the respondent wished to maintain, albeit not carried out by the complainant. The complainant ought to have been pooled with whoever could also do the business development role. Taken together, the termination of the complainant’s employment did not have the required impersonality and change to constitute a redundancy. It follows that the dismissal was unfair.

Redress

The complainant gave evidence of trying to find alternative employment. In these uncertain times, many employees were on lay-off, short-time or being made redundant. The complainant’s options were limited by being able to only work part-time. I find that the complainant sought to mitigate her loss and did not contribute to her dismissal. I note that the complainant was paid a redundancy lump sum. I do not, therefore, make an award for ‘the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973’[section 7]. I do, however, award financial loss arising from actual or prospective loss. I note the complainant was paid statutory notice pay, so this is not counted in financial loss arising from the dismissal. I note that the complainant was paid a reduced PUP payment, and this is disregarded in the calculation of financial loss, per section 7(2A) of the Act. Taking these circumstances into account and the complainant’s monthly rate of pay of €953.87, I award compensation that is just and equitable of €7,000.

CA-00040836-001

For the reasons set out above, I decide that the complainant was unfairly dismissed, and the respondent shall pay to the complainant just and equitable compensation of €7,000.

Unfair Dismissals Act / Covid-19 pandemic / redundancy / LinkedIn / duty to inquire / precision in grounds of redundancy