Complainant

Respondent

Anonymised Parties

A Certification Officer

A Public Authority

Representatives

Unite the Union

Act

Dispute Reference No.

Date of Receipt

Complaint under Section 13 of the Industrial Relations Acts 1969

CA=45607

CA-43947

07/05 2021

The complainant is employed on a permanent fulltime basis as a Management System Auditor/Certification Officer with a public authority since 1993. He has worked remotely from his home in Co. Wexford since February 1st, 2003.

There are two claims; one is for the reimbursement of broadband costs and the other for a utility grant. He claims €14711.14 in respect of the former and €2880 in respect of the latter.

In 2019 the complainant became aware that two colleagues were being reimbursed for broadband costs. Then in May 2021, it came to his attention that the same two colleagues who operate in the same roles as he does had received a payment in respect of a Utilities Grant/Home Office Allowance as part of their working from home arrangements.

The complainant had not received this allowance despite having been previously in receipt of it with the last payment in late 2009. His claim is for this grant/allowance and the broadband reimbursement to be paid as it has been to his co-workers both retrospectively and on a continuing basis.

On February 1st, 2003, the complainant commenced working from home and a Health & Safety Risk assessment of his home office was carried out which created no difficulty. He furnished and fitted out the office at the time with no expense to the respondent and this became his base for travel expenses etc.

Additionally in the respondent working arrangements policy and procedure document dated November 2009 it is stated that it will facilitate e-working by providing the following, Employers Liability Insurance, Company Mobile Phone, Interest Free Support Loan (where applicable), Desk, Chair, Filing cabinet, Telephone & Landline, Broadband,Ancillary items etc.....

There has been no reasonable case made for the treatment of the complainant, and additionally there has been no resolution through the grievance process.

As a result of the decision not to provide paid broadband, he is at a financial loss compared to his work colleagues for performing the same role and work. Quite simply he has been denied access to paid broadband when his colleagues/comparators have had the provision of paid broadband. This is unfair and unequal treatment.

We calculate the cost of Broadband in the region of €14711.14. From approximately mid-2018 onwards these figures can be vouched in the sum of €2831.44. From February 2003 up until mid-2018 the complainant has had to estimate the cost of Broadband at €60 per month due to the unavailability of bills for this period. The total sum for this period at this rate is in the sum of €11880. (198 months at €60 per month).

In May 2021 it came to his attention that two colleagues had also received retrospective payments from the respondent in the previous months for utilities for their offices referred to as a utility grant/home office allowance dating back four and six years.

The respondent HR department replied saying it would not discuss arrangements made for his co-workers and saying that it was ‘not aware of any arrangement in place authorising or approving the payment of a utility grant to you, now or in the past."

He lodged a grievance, but the internal grievance procedure concluded without resolution and in line with Stage 4 of the Grievance procedure the matter was referred to the Workplace Relations Commission for adjudication in August 10th, 2021.

His two co-workers confirmed in writing that they were in receipt of the home office allowance, in one case covering the period April 2015 to April 2021 and in the other for the period of April 2017 - April 2021 at the rate of €20 per month.

As all three employees are in the same position the complainant is not being treated in a comparable manner and he is at a financial loss compared to his work colleagues doing the same work.

We calculate the cost of the utility grant at €20 per month over nine years. Therefore, the amount being claimed is €2880.

Inlate2002the complainant optedtorelocatehisplaceofresidencetoCo.Wexfordfor personal reasons and had requested that he be allowed to work from home under the respondent E-working pilot schemethatwasbeing rolledout atthattime.

When details of the pilot scheme were finalised, the E-working arrangement was officially confirmed.

A Health & Safety risk assessment was carried out at his home address to determine the suitabilityofthelocation,whichwas subsequently followedby a letter serving as confirmation of approval and a copy of the document outlining the ‘E-workingRulesandGeneralInformation’regardingthisarrangement.

As outlined within that document a utility grant and telephone costs were covered under this arrangement. These costs were covered for the respondent effective from February 2003 when he commenced working from his home. In 2008, a decision was taken to relocate the respondent’s Headquarters. Arising from the conciliation conference that took place on 19/20 March 2008 at the Labour Relations Commission, an agreement was reached in principle regarding a number of areas, including E-working. An extract follows.

a.                                   “E-working

There will be a pilot of arrangements under the [respondent] New Working Arrangements Policy and Procedure of March 2008. The Pilot will be for six months commencing 3rd quarter 2008 and progress will be jointly reviewed. The Scheme will be capped at 12 participants, 4 from each category, technical, professional, and administrative. This is additional to existing e-workers.”

Based on the above decision, a review of the then existing E-working pilot scheme took place. Existing e-workers were informed in writing of this review. A total of twenty-three staff members including the complainant were availing of an E- working arrangement at that time. Further to the report of the review, the T&Cs of the E-working arrangements were revised.

Staff members availing of an E-working arrangement and their line managers were informed of the review and the fact that current arrangements would cease. In order for the arrangement to continue, those who had an existing E-working arrangement were informed that they had to complete a new application and also provide feedback on their existing arrangement.

The complainant applied for his arrangement to continue, along with the requested feedbackand a letter was issued to him on November 9th, 2009, confirming approval of his application and the cessation of utility/broadband payments.  

A letter was also issued to all other staff members who had availed of an E-working arrangement prior to the review confirming the cessation of utility/broadband payments. All utility and broadband payments to those staff members who were availing of an E-working arrangement prior to this review ceased with effect from January 1st, 2010.

Three members of staff were treated separately as they had approved alternative arrangements in place. (Details were submitted of meeting of November 2nd, 2009, regarding arrangements that were to be treated separately.)

When the complainant raised this grievance via the internal process, he was informed by the Head of Human Resources, that there was no record of any arrangement in place authorising or approving the payment of utility grant and broadband costs to him after the 2009 review.  On this basis such payments could not be granted to the complainant and his claim could not be conceded.

For reasons of confidentiality, he was informed that management was not in a position to discuss the arrangements in place for other staff members.  The ‘comparators’ identified in the complainant submission had separate arrangements and therefore cannot be considered like-for-like comparators.

These three staff members (one has since retired, thereby leaving two current staff members claimed as ‘comparators’) had an approved five days per week working from home arrangement following the changes at the work location where they were based at the time of the E-working pilot.

However, this arrangement was not made under the E-working policy, but was agreed as a separate/individual arrangement based on business needs, office availability and individual requirements. Consequently, as part of this arrangement specific to the staff members who were previously based in that location only, the respondent continued the payment of the utility grant and associated broadband costs.

The complainant made a personal choice to relocate to Co. Wexford and the respondent supported his move by allowing him to work from home on the day (singular) when he was not normally conducting site audits.

The terms and conditions of both the original and the revised E-working scheme applied to this arrangement in the same manner as to all other like-for-like comparators availing of this scheme (i.e. all other staff other than the two/three staff availing of individualised arrangements).

It is on this basis that the complainant is not entitled to receipt of the utility grant and broadband payments with effect from January 1st, 2010. Payment of the utility grant and broadband also ceased from the above date to all other comparable staff members.

All future applications for E-working were made under the revised Alternative Working Arrangements Policy (submitted), which made it clear that no utility grant or broadband payments would be made to the staff member.

In line with the provisions of the new policy, the complainant was asked in subsequent years to renew his application. He raised the issue of utility/broadband payments again in 2012 and based on the lack of evidence to prove otherwise, the position in relation to his working arrangement was not changed and it continued as previously agreed, i.e., with no payment of utility grant and associated broadband costs made to him.

Further to the submission of his grievance, the complainant was informed that the other staff members he was referring to were not like-for like comparators and that their individual circumstances could not be discussed due to reasons of confidentiality. Based on the absence of any evidence to support his case he was informed that his claim would not be approved, and that the internal grievance process was deemed to have concluded.

An in-depth file review, including a detailed search of archived files took place following receipt of the original WRC notification of an adjudication hearing.

Throughout the period of the COVID-19 pandemic when the vast majority of civil and public servants (including the respondent staff) worked from home, the Department of Public Expenditure and Reform (DPER)statedexplicitlythat nopaymentsinrespect ofcostsaccruing on footof home working (such as a home working allowance or payments towards lighting, heating, and broadband) were to be paid to staff.

Continuing advice to civil and public servants throughout the pandemic period and into the future was/is to instead claim tax relief for home working costs, and this advice has been provided to our staff on a number of occasions.

That is also the respondent policy and all payments to the two named ‘comparators’ in the submissions have ceased, in accordance with the policy.

Any variation to our current approach to this matter would be in direct contravention of Government policy in relation to ‘Hybrid Working’ supports as set out in the July 2022 DPER document, and also set out in previous COVID-era FAQ documents circulated by the Department of Enterprise, Trade and Employment to the public sector agencies under its aegis, including the respondent.

Based on these facts of the case and available supporting documentation presented above, the respondent requests a recommendation in favour of maintaining the position not to make any retrospective (and/or future) payment of the utility grant and broadband charges to the complainant.

The background narrative has been set out by both parties and is essentially the same.

Between 2003 when the complainant first entered into the working from home arrangement, he had been in receipt of certain financial supports for working from home.

These ceased with effect from January 1st, 2010, and the complainant accepted this as a basis for continuing to benefit from the home working arrangement. He renewed his application for support in 2012 and this was rejected. He continued to work on the basis of there not being any financial support until he became aware of the situation of two of his colleagues, initially in 2019 and then in 2021 when he learned that they had an arrangement involving support payments.

While this information came to light after the passage of nine and eleven years during which the complainant had (for the most part) accepted the policy of not being given financial support and indeed had entered into it in 2010 in the full knowledge that there would be no payment, he obviously felt aggrieved at what was perceived at the inconsistency in the respondent’s approach.

It is at this point that the difficulty arises.

The complainant’s submission lays heavy emphasis on the two colleagues as ‘comparators’ in that they largely do the same work as he does, the respondent disputes that they are comparable, and that the arrangement (which has in any case ended) was confidential and very particular to the individuals in question and was not made under the E-working policy.

This is hotly disputed by the complainant on the basis of his personal knowledge of the position that applies to his co-workers.

The respondent says it is constrained by considerations of confidentiality in providing further information on why this is so, and this must be respected, as whatever arrangements had been agreed with the complainant’s colleagues are confidential to them.

Unfortunately for the complainant there is a more formidable obstacle to his claim in the shape of Government policy in relation to ‘Hybrid Working’ supports referred to in the respondent’s submission, and as set out in the July 2022 DPER document, and also set out in previous COVID-era FAQ documents circulated by the Department of Enterprise, Trade and Employment to the public sector agencies under its aegis, including the respondent.

Taking all of these factors into account, the complaint must fail. The complainant has acquiesced in the current agreement between January 2010 (although he raised it again in 2012) and March 2020 and May 2021, when he became aware of the position with his colleagues in relation to the respective allowances.

Those payments to his colleagues have in any event now ceased and in the light of current regulations in the public service in respect of home or hybrid working there is no basis to make a recommendation that such payments should be made to the complainant.

Finally, there is one further, critical consideration.

A complaint to the WRC under the Industrial Relations Act is not in the nature of an appeal against the outcome of a workplace grievance process unless some significant procedural defect or lack of fairness can be identified in the conduct of that process.

It is not simply an outlet for someone who may be disappointed at the outcome of an otherwise well-conducted workplace process to have a ‘second bite at the cherry’. As is clear from its name, the WRC has  significant obligations to ensue that matters which are dealt with properly at the level of the workplace will be respected.

No case was made out of any such defect in the management of the grievance at the level of the workplace and I could not discern any in the course of the hearing or from a review of the submissions. 

For all these reasons the complaints are without merit, and they fail.

For the reasons set out above I do not uphold complaints CA-00045607 and CA-00043947.

Working from home