Complainant

Respondent

Parties

Gráinne  Flannery

Mercer

Representatives

Mary Fay BL instructed by A&L Goodbody Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00055961-001

06/04/2023

The Complainant began working for the Respondent from April 2019. In January 2023 she was notified that she was at risk of redundancy. She was made redundant in March 2023.

Throughout the process the Complainant maintained she should not have been selected as at risk for redundancy and sought to challenge the decision. After she was made redundant she submitted a complaint under the Unfair Dismissals Act.

The Complainant had already submitted a complaint under the Employment Equality Act relating to other matters. These issues were considered separately by a different adjudicator.

The Complainant made written submissions and gave evidence at the hearing.

The Complainant outlined that she was unfairly dismissed under the guise of redundancy. She believes the reason for this dismissal was her having previously brought WRC complaints.

The Complainant was offered exit terms when she was dismissed but she wanted her cases to be heard she did not agree to these.

The Complainant also sought to raise the treatment she had received from the Respondent’s occupational health provider in the context of this case. She had been subjected to unfair and inappropriate questioning regarding her hearing loss which was mischaracterised as a medical issue.

There had been numerous IT disruptions which effected the business and her ability to do her job. There was a general failure in how the organisation supported her as well as a lack of engagement. She was subject to numerous disciplinary meetings in 2022 and was suffering from shingles.

She feels that she was treated as half a person by the Respondent.

The Respondent made written submissions and two members of management attended and gave evidence. They were Ms Lilian Maher, HR lead and Mr Daniel Mansergh who oversaw the Share Scheme area of business where the Complainant worked.

Ms Maher outlined the Complainant’s background with the Respondent and that she took up employment as a secretarial assistant on the 29th of April 2019. She later transferred to the share schemes team as a grade C administrator.

Where the business has a proposal which may result in redundancies the HR function becomes involved. They advise on the process, assist on engagement with affected staff as well as support any colleagues whose role is at risk. They give them access to EAP and encourage them to consider alternative roles.

Where there is a pool the business applies a standard matrix based on objective criteria. This had been used in previous redundancy processes.

This case concerns a redundancy in the share scheme department but there were other redundancy processes in 2022 and 2023.

Performance is taken into account on the basis of being averaged over a 3 years basis using the Respondent’s Performance Review process called Performagrow. A staff member receives development support and PR feedback throughout the year. There are three ratings, Off track, On track or Stand Out.  The Complainant should have known where she stood at any given time.

Mr Mansergh gave evidence under affirmation.

He has been with Mercer for 20 years. He explained how the Share Schemes Team operates. There are 16 people on the team but numbers fluctuate.

Generally there have been 4 to 5 consultants and 12 admin staff.

On the admin side there is an online enrolment team where 4/5 employees deal with customers on the phone and over email. Then there is a core administration function which comprises of 2 teams of 4.

Those working in admin are not at the same grade, Grade C is the lowest and there are more senior administrators at Grade D,E and team leaders at Grade F.  The 4 people at Grade C were pooled as part of the redundancy process.  

The decision had been made to outsource some administrative functions to India. They had already referred some of their wealth function’s admin to the same supplier in India and this move had been highly successful.

This process began in November and it was clearly working out well. They determined that they didn’t need the same resourcing in Dublin.

Mr Mansergh wasn’t aware of the WRC complaints at this point.

Mr Mansergh took the hearing through some of the correspondence following the Complainant being notified that she was at risk of redundancy. At the time the Complainant was working from home following medical issues. She didn’t want to meet so they engaged by email.

The Complainant was referred to intranet. Jobs there are initially advertised internally. The Complainant did not express any interest in any of these other jobs.

Mr Mansergh then explained the scoring matrix which was used to rank the pooled staff.

The Law

Section 6 of the Unfair Dismissals Act provides that:

6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

The burden of proof is on the Respondent to establish that there were substantial grounds justifying dismissal. In this case they argue that the Complainant’s role became redundant

Section 6 goes on to state that:

(3) 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.

……

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so —

(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.

Section 7(2) of the Redundancy Payments Act 1967 as amended provides:

(2) For the purposes of subsection (1), 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:

…..

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(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 Reason for Redundancy

The Respondent’s witnesses outlined in evidence the structure of the team which administered share schemes and the overall viability of that part of the business. The Respondent had set up an off-shore team and had already relied on them for certain parts of their wealth function. In November 2022 a  decision was made on a commercial basis to hand further responsibilities to this off-shore team, including admin tasks related to the Share Scheme function. These tasks included data entry, call offs, share reconciliations and tax returns.

As a result of this there was a reduced need for administrative staff on the team in Dublin. The Respondent wrote to the Complainant outlining this situation on the 31st of January 2023 and notifying her that she was at risk of redundancy.

Selection Process

The Complainant responded to the letter notifying her she was at risk on the 3rd of February. She stated that she believed that the reason given for her being at risk was not genuine and she challenged why she was selected.

Respondent replied on the 9th of February and outlined that the Complainant was one of four colleagues who carried out the same or similar duties and that a scoring matrix had been applied to determine which of these four was at risk. The Complainant was sent a copy of the matrix which provided the overall scores for the three other colleagues and the individual scores for the Complainant, she later received the individual (that is heading by heading) score for the other three.  The headings which were applied were Mercer Experience, 3rd level education relevant to the role, professional qualification as well as the three previous years’ PR ratings. The Complainant scored the lowest of the four.

Scoring

The Complainant challenged the Respondent multiple times her scoring in the selection matrix. Specifically on the education ground. The Respondent had determined that the 3rd level education was not applicable to the role so had essentially removed it from the matrix by marking it N/A for each person.

The Complainant referred to her academic accomplishments and their rating in the European Credit Transfer System. She sought to have the points attributed the third level courses she had completed by that system into the Respondent’s scoring matrix.

This point was obviously misconceived. It was up to the Respondent to determine whether third level education was relevant to the role. Even if it was taking into account third level education, seeking to insert numbers from a totally separate and unrelated scoring system into the Respondent’s internal matrix simply does not make sense.

I also note that the Complainant did not lose out on the education ground, in comparison to her colleagues. She actually received additional points due to her having the QFA qualification while the person immediately ahead of her in the matrix scoring did not have the QFA. She was selected primarily because of her poor performance scores over the past three years.

As far as I can tell the Complainant did not appeal these performance reviews at the time they were issued. She also failed to substantially challenge them during the redundancy process. She made a general statement that she did not believe they were reflective of her contribution to the team but there was no suggestion that these were not her PR scores, nor was any real basis put forward to challenge their place in the matrix.

In the hearing the Complainant outlined that IT systems issues had affected her performance but Mr Mansergh provided evidence that those issues affected everyone and that staff weren’t marked down for those IT problems.

Ultimately the Complainant failed to establish, during the redundancy process, that the Respondent was in anyway unreasonable in relying on the scoring matrix. 

WRC Proceedings

The Complainant alleged that the Respondent’s decision to select her for redundancy was in retaliation for earlier WRC proceedings.

The Respondent was able to demonstrate that they did not know about the WRC proceedings until after the decision had been made to offshore the relevant work and to select the Complainant as at risk via the scoring matrix.

This decision was made and communicated in January 2023 and the Respondent did not receive a notification from the WRC until February 2023.

Medical Report

The Complainant raised a serious issue regarding a medical report completed in January 2022. A year before she was put on notice of being at risk of redundancy.

She had been referred by the Respondent for an outside medical assessment. She found the questions put to her by a member of staff employed by the occupational health service provider to be extremely offensive. At the date of hearing she was still visibly upset about the contents of this report and the issues raised in it. She believes she was treated as a ”half a person” and in a discriminatory and prejudiced fashion.

The Complainant brought complaints under the Employment Equality Acts relating to this report. This were considered in  ADJ-00043776 and are currently subject to appeal at the Labour Court.

In the hearing I explained that I cannot consider a matter which had already been decided on by another WRC adjudicator and that I was considering a complaint under the Unfair Dismissals Act related to her being made redundancy.

The Complainant maintains that the report factored into her redundancy but I do not see how this was the case, particularly in light of matrix used to select the Complainant. Mr Mansergh was clear in evidence that he does not remember the report and that it made no impact on his decision regarding the Complainant’s redundancy.

Decision to make the Complainant redundant.

Referring to the legislation the Respondent has demonstrated a clear basis for redundancy. They had determined that they were going to carry out work in a different manner and place and that this required fewer employees in Dublin.

As the redundancy could apply to one of four people the Respondent was required to apply a fair selection process. The Respondent set out how their scoring matrix works and provided details of this to the Complainant during the consultative process. The matrix appears to have been a standard selection matrix used by the Respondent in these situations. The Complainant scored relatively highly in two categories, each amounting to 25%. These were Mercer experience (which was related to service) and education. However, the matrix gave 50% of the scoring to an average of the previous three year’s performance reviews. This brought the Complainant down significantly and resulted in her selection.  

It is clear that the Respondent followed a substantially fair and transparent selection process.

The Respondent then engaged in a consultation with the Complainant to consider alternatives. As outlined in the Respondent submission the requirements on an employer in this regard were set out by the EAT in  Jeffers v DDC Ireland Limited UC 169/2000.

 “(1) to take reasonable  steps to seek alternative employment within the company, for the employee being made redundant, (2) to know what positions, if any are available on the relevant date, and  (3) to offer any such reasonable alternative positions to the employee whose position is becoming redundant”.

The Respondent referred the Complainant to their jobs portal on the intranet. The Complainant, rather than consider alternative roles focused on challenging the decision to make a position redundant and select her for that position.

I would note that I do have some concern as to whether notifying an employee only of what jobs are available on the company intranet satisfies the requirement to offer reasonable alternative positions to an employee at risk of redundancy. The employee at risk of redundancy should not be put in the same position as an outside hire or a routine internal transfer. However, in this case the Complainant did not indicate any interest in any other role, if she had the Respondent would have been obliged to consider whether she was suitable for the role.

As such in the circumstances of this case I am satisfied that the Respondent met the above threshold.

I find that the complaint is not well founded.