Complainant

Respondent

Parties

Paula Deegan

Bank Of Ireland Group

Complainant

Respondent

Anonymised Parties

Representatives

  Self

Owen Keany, B.L. Triona Cody Kane Tuohy LLP Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00061282-001

30/01/2024

The Complainant is employed by the Respondent since 04/04/2016.  She has held several positions and since 2020 she was working as a Customer and Service Manager. The Complainant went on leave on 12/12/2020 and has not returned to her role or any other role which was suggested by the Respondent.  The Complainant believes that she should be assigned a role which aligns with her experience and that this should be an actual job and not one which the Respondent formulates to facilitate her return.  The Respondent believes that they have provided the Complainant with written statements of the terms applicable to any role on offer and therefore she has no claim under the 1994 Act.

The Complainant gave evidence on oath.  She outlined that she was on bereavement leave following a difficult family bereavement on 12/12/2020.  She remained on leave for some months, and she met with Ms Aileen Reilly and another representative of the Respondents in June 2021 to discuss her return to work.  She was told that her job was no longer there due to branch changes, and she agreed to look at two other roles.

The Complainant gave evidence that she was on bereavement leave until 04/08/2021.  She had limited contact with the Respondent, and she was removed from distribution lists.   She was advised to look at the internal job portal.  The Complainant gave evidence that she contacted the HR department and spoke with Mr Brian Kelly.    The Complainant outlined that she was always chasing the Respondent to see what was happening.  The Complainant also outlined that she is currently being paid but is not at work and does not know what the position is.  The Complainant gave evidence that she is working for the Respondent for 17 years and is 3.5 years out of work and she seems to be the one suffering from the consequences of this.  She does not know what is going on and receives no updates.  In response to a question from the Adjudication Officer the Complainant confirmed that she is seeking a real job and she clarified that this means a job that is advertised and that has the same terms and conditions as she previously had.

The Complainant was cross examined by Mr Keany, B.L. on behalf of the Respondent.  She confirmed her career history with the Respondent.  She confirmed that she had a job description and detailed terms of employment for her role as Customer and Service Manager.  She also confirmed that this role was graded at Band 2 level.

It was put to the Complainant that she was offered a role of Remediation Specialist and arising from various exchanges the Respondent made many changes to facilitate her and deal with her concerns.  In addition to this the Respondent also agreed to pay her the rationalisation payment of €2,831.50 and a salary increase of 7% and a further payment of €10,807.81 in lieu of annual leave and a good will payment of €13,009.41.

The Complainant confirmed that the final (fourth version) of the contract was correct.  The Complainant outlined that when she went to the branch to see about the role, she discovered that the role did not match the contract.  She believes that she would be reporting to a person of the same grade (Band 2) and that the job was not really a job but just organised to get her back to work.

Closing Submission – Complainant:

In her closing submission the Complainant stated that there was a lot of information provided at the hearing.  She stated that she never refused to go back to work or to engage with the Respondent.  She stated that she feels like she is on suspension.  She was given no opportunity to apply for jobs in 2021 and her career has been damaged because she is out of work.  In relation to the remediation role this was the first time she heard of data analytics.

The Complainant stated that she has applied for 14 jobs since November 2023 and was not successful.  The roles that she was offered by the Respondent are designed to suit them.  She has had “radio silence” for the past two years and she is paid but does not receive any pay slips.  The Complainant stated that the Respondent has a duty of care to her, but they have not shown any.

The Complainant outlined that any implied terms such as trust is completely broken.  The Complainant outlined that she was always fair in her dealings with the Respondent.  She wants to have the same terms and conditions as anyone else.

The Respondent raised two preliminary points at the start of the hearing.  A previous hearing was adjourned on the understanding that the Complainant would submit her supporting documentation, but this was not provided until the day prior to the hearing.  Secondly, the Complainant did not outline how the Respondent has breached the Terms of Employment (information) Act, 1994.

Evidence of Ms Joanne Healy, Employee Relations:

Ms Joanne Healy, Employee Relations, gave evidence on oath on behalf of the Respondent. Ms Healy gave evidence that she is in her role 5.5 years.  She confirmed that the copy of the Complainant’s contract of employment dated 28/09/2022 opened at the hearing was for a Customer and Services Manager (CSM) role and the contract dated 02/12/2023 was for a Remediation Specialist role.  Ms Healy gave evidence that she was involved in this case since July 2023, and she believed that she was always sympathetic towards the Complainant and wanted to engage constructively with her and try and resolve her concerns.  Ms Healy said that the Respondent had resolved all the issues highlighted and the only matter to be resolved was her role going forward.  Ms Healy stated that different options were looked and when the new contract was issued the Complainant wanted to have flexibility regarding remote working included.  Ms Healy stated that it would be rare that the Respondent would tailor a contract to suit a particular individual, but they done so on this occasion.  The contract issued in January 2024 is the final draft and includes all the changes sought by the Complainant and which were acceptable to the Complainant.

Ms Healy stated that she got a call from the Complainant to say that she had called to the branch and that the role was not as expected.  Ms Healy stated that the Complainant’s concern was about reporting to a Band 2 person, and she explained to the Complainant that what was important was the structure which was in place ad not your specific band.  Ms Healy confirmed that the Complainant was not dismissed or demoted.  Ms Healy stated that the Complainant did not engage or turn up to a meeting.  Ms Healy gave evidence that she sent e mails to the Complainant and on 24/4/2024 she specifically encouraged and asked the Complainant to take up the Band 2 role or if there was any other Band 2 role that she was interested in.  Ms Healy confirmed that she did not get any response to this series of e mails.

Cross examination of Ms Healy:

Ms Healy was cross examined by the Complainant.  The Complainant asked Ms Healy to explain the Respondent’s Career and Reward framework.  Ms Healy outlined how this framework links in with the organisational structure.

Evidence of Ms Aileen Reilly, Head of Operations, Area East:

Ms Reilly gave evidence on affirmation in relation to her role and her previous role with the Respondent.  She was the Complainant’s direct line manger when she was in the CSM role.  Ms Reilly said that she spoke with the Complainant on 09/12/2020 and she told her that she did not want to remain in that role and wished to return to her previous role.  Ms Reilly gave evidence that the Complainant contacted her at the time of the family bereavement and the next contact she had with her was in June 2021.  Ms Reilly stated that the person who was dealing with the Complainant left, and he was replaced by another individual.  Ms Reilly stated that she met with the Complainant in June 2021 after they had received confirmation that she was fit to return to work.  Ms Reilly stated that she believed the Complainant had walked out of the CSM role the previous December.  She felt that they had a good meeting with the Complainant.  Ms Reilly gave evidence that the Complainant made it clear that she did not want to be based in a branch for five days ad she needed flexibility to be able to look after her children.

Ms Reilly stated that the Complainant was never suspended or dismissed, and she was anxious to find a solution that would work for the Complainant.  Ms Reilly also gave evidence that the Complainant’s CSM role was not replaced.  There were six CSM’s in the county structure and her role was backfilled on an acting/secondment basis.

The Complainant confirmed that she did not wish to cross examine  Ms Reilly.

Evidence of Mr Brian Kelly, Group HR Director:

Mr Brian Kelly gave evidence on affirmation.  He confirmed his role and noted that he was previously a Senior HR Business Partner with the Respondent.  Mr Kelly outlined details of his contact with the Complainant.  He gave evidence that he committed to working with her in relation to a role.  She was clear that she did not want to return to a branch role, and she wanted flexibility.

Mr Kelly also gave evidence in relation to the organisational changes which took place at the end of 2021.  Several branches were closing and there was a rationalisation taking place.  There were about 230 people affected by these changes.   Mr Kelly outlined that there was a meeting in July 2023 with the Complainant in relation to alternative roles.  Various options were looked but none were what the Complainant wanted.  Mr Kelly described the general tone of the meeting as good and constructive, and they committed to looking at what other roles  and various other issues that could be resolved. 

There were several roles identified to the Complainant in an e-mail he sent to her on 14/06/2023.  Mr Kelly also gave evidence that he later clarified for the Complainant why she could not return to a Band 3 role.  This was because she had limited Band 2 experience and he wanted to ensure that she would return to a role where she would be successful.  Mr Kelly confirmed that in the e mail of 29/08/2023 he confirmed that he various payments and salary increase would be put in place.

Mr Kelly gave evidence that he was very familiar with the Career and Reward Framework.  Mr Kelly stated that the document outlines a clear structure.  However, this is not a remuneration chart.  Mr Kelly outlined that the structure typically has nine layers, and these are not indicative of a person’s Band.  Mr Kelly was asked if the Complainant was correct when she stated that by her reporting to another Band 2 person this meant that she was in effect a Band 1 person.  Mr Kelly stated that her assumption was incorrect.  The Respondent has 675 people in retail and approximately 400 of these report to a person of the same grade.

Cross examination of Mr Brian Kelly:

Mr Kelly was cross examined by the Complainant.  He was asked to clarify how the band reporting worked and specifically how  a Band 2 person could report to another Band 2 person.  Mr Kelly outlined that it is the nature of the job that a person does if they have another Band 2 reporting to them. 

It was put to Mr Kelly that not being able to apply for a Band 3 role was a loss of opportunity.  Mr Kelly stated that they encourage people to move roles within their band to acquire experience and in that context be ready to apply for a Band 3 role.

In response to a query from the Adjudication Officer, Mr Kelly confirmed that the role offered to the Complainant was not a made-up role.  It was an existing job and they needed it filled.

Mr Kelly was asked by the Complainant why the job was not advertised if it was an existing job.  Mr Kelly stated that he committed to looking for a role for the Complainant in the area that he looked after.  Once he became aware of this role, he was able to approach the Complainant directly rather than commence a recruitment process.  Mr Kelly stated that it was rare that the Respondent would not advertise a job but, in his role, he has to deal with individuals who have specific issues, and he looks for roles to accommodate them.  This process is an exception to the recruitment process.

Evidence of Mr Sean Buckley, Head of Customer Operations:

Mr Sean Buckley gave evidence on affirmation. He confirmed his role as Head of Customer Operations and in that role, he oversees the remediation department. He explained that this role involves working with the bank’s core systems and also working with data. Mr Buckley gave evidence that he was asked to meet with the Complainant and this meeting took place on 17/11/2023.  Mr Buckley stated that this meeting went fine.  He discussed the equipment the Complainant would need when working from home and the security access.  He met the Complainant again on 18/12/2023 and he discussed the role on offer and the need to start slowly and build up her knowledge.  He also discussed the training requirements.  Mr Buckley gave evidence that a virtual meeting was arranged with Ms Comerford to be held after Christmas.  He was on leave at that time. It was hoped to arrange for the Complainant to visit the branch and meet the team and have some initial training.  This did not happen on the date arranged but it did happen on another occasion.  Mr Buckley gave evidence that the Complainant did not take up the role as she said it was not a role for her.   Mr Buckley did not agree that this was a role that was made up.  The basis of the role of a Remediation Specialist is that you need to understand the core bank work.  Mr Buckley also confirmed that this was a full-time permanent role, and this was made clear to the Complainant from the start of their discussions.  Mr Buckley denied that a Band 2 reporting to another Band 2 employee was a contradiction.

The Complainant did not have any questions for Mr Buckley by way of cross examination.

Evidence of Ms Cassandra Comerford, Senior HR Business Partner:

Ms Comerford gave evidence on affirmation and confirmed her role with the Respondent.  Ms Comerford outlined her contact with the Complainant.  She explained that the Complainant’s contract was for a hybrid role, and it was agreed that Tuesday and Thursdays would be office based.  The Complainant’s computer needed to be sorted out and it was agreed to meet the following week, but this did not happen as the Complainant had car issues.  The Complainant worked from home that day and she spoke with her subsequently but noted that it was difficult to contact her.  The Complainant was to meet with another person in HR, but this did not happen.

Cross examination of Ms Comerford:

Ms Comerford was cross examined by the Complainant.  It was put to Ms Comerford that the first time she met the Complainant was at the WRC hearing.  Ms Comerford agreed. Ms Comerford also agreed that she spoke with the Complainant before Christmas. It was put to Ms Comerford that the Complainant had issues in relation to IT and she agreed.

Ms Comerford was asked if she was advised that the Complainant was a Band 2 when she was sorting out details about the Remediation Specialist role.  Ms Comerford confirmed that she was aware that the Complainant was a Band 2 employee.

Closing Submission – Respondent:

In a closing submission on behalf of the Respondent Mr Keany, B.L. stated that there was a considerable amount of information mentioned during the hearing.  Some of this was helpful.  It is a matter of profound regret that the Complainant did not allow a lot of those issues to be clarified through the Respondent’s internal process.  The evidence is clear on the steps taken by the Respondent to facilitate the Complainant’s return to work.

A claim under the Terms of Employment (Information) Act 1994 has two possible strands.  The first is that a statement of the terms and conditions of employment was not provided and the second that changes to those terms were not notified to an employee.  In this case it is not disputed that the Complainant was provided with the terms and conditions of her employment.  In relation to the claim that she was not notified of any changes the evidence is clear that she was informed of any changes and there is no possible basis under the Act to bring any claim.

The Respondent is criticised for accommodating the Complainant too much.  She was offered a role which is better than the one she previously held.  Mr Keany noted the Complainant’s view that “The Bank kept firing things at me” as if this was a bad thing.  The Respondent was trying to facilitate and accommodate the Complainant.  The Respondent done a comprehensive trawl to find a role that would suit the Complainant. The options available to all CSM’s who were affected by the reorganisation were to (i) retain the CSM role, (ii) examine an interest in other roles through the internal job portal and (iii) an option of a voluntary parting of the ways.  All these options were always available to the Complainant and remain are still available to the Complainant. 

The Complainant was given additional accommodation so that she could step into a role without the need to go through a competition. 

Mr Keany stated that this is a very precise claim, and the Complainant has no basis for this complaint.

This is a complaint seeking adjudication by the WRC under section 7 of the Terms of Employment (Information) Act, 1994.  It is the Complainant’s position that she was not notified of any changes to her terms of employment.

The Terms of Employment (Information) Act, 1994 states:

5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the Complainant in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect”.

At the hearing, and in the documents submitted,  the Complainant outlined her dissatisfaction with the way she was treated by the Respondent and the prolonged delay in finding a suitable role for her.  The Respondent, on the other hand, submits that they have made exceptions for the Complainant to take on another role without any competition or any process.  

In offering the Complainant a role I am satisfied that she was facilitated with a contract of employment that was modified to reflect all of the concerns she had.  The Complainant did not provide any evidence that she was offered any adverse terms or that any of her existing terms and conditions were amended.

Having carefully examined a copy of the Complainant’s terms and conditions, pre-existing and those on offer, I find that the Complainant has not established that the Respondent has contravened the Act. In those circumstances I find that this complaint is not well founded. 

I find that the Complainant has not established that the Respondent has contravened the Act. In those circumstances I find that this complaint is not well founded. 

Terms and conditions.  Changes to terms and conditions.