Complainant

Respondent

Anonymised Parties

Complainant

Respondent

Representatives

  A Friend

Ibec

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-00059773-001

02/11/2023

The complainant was employed with the respondent from July 1996 to May 2023.

The complainant signed a severance agreement with the respondent on 3 May 2023.  The respondent made payments to the complainant on foot of the severance agreement.

On 2 November 2023, the complainant referred to the Workplace Relations Commission a case under the Employment Equality Acts with claims of discrimination on grounds of age and victimisation.

It was submitted by the respondent that the WRC has no jurisdiction to hear the case referred in circumstances where the complainant waived his right to lodge such a claim by signing a waiver and release in full and final settlement of all or any claims arising out of his employment with the respondent.

The complainant was told he was being offered €25,000 as a termination payment.  He had wanted to keep his job.

In support of his position on the preliminary issue, the complainant referred to the Labour Court’s determination in Keelings Retail Unlimited Company v Wasim Haskiya (UDD2023).

Summary of complainant’s sworn evidence relevant to the preliminary issue

The complainant was placed on a personal improvement plan (“PIP”) in or around December 2022 / January 2023.  The PIP continued through to May 2023.  The complainant was under extreme stress.  The complainant’s trade union representatives were trying to secure the complainant a lump sum payment on a termination of his employment.  He was told by his friend, and representative at the hearings before the WRC, that he needed to go to an employment law solicitor around this time, but he did not. 

In or around 26 April 2023, the complainant panicked when the respondent withdrew a settlement offer for the second time.  He telephoned the union official to say that he was going to take the offer.  This was after he had spoken to a couple of people for advice.  The union official told the complainant that he did not need to go into work until a signing meeting on 3 May 2023, and that the complainant would be paid up until 3 May.  The complainant did not work after he signed the settlement agreement on 3 May 2023.

The reference to a settlement agreement was made at the end of March/beginning of April 2023.  The complainant was not provided with a copy or draft of the agreement in advance of the signing meeting on 3 May 2023. The complainant did not meet with his union official prior to signing the agreement; there were two telephone calls and one text message. 

The complainant was advised by his friend and the union official that he should take the €25,000 offered.   The complainant had chronic anxiety at the time and the union representatives told him that if he did not take the money, the scrutiny would continue. 

The complainant was not in a good place when he went to the signing meeting on 3 May 2023.  He went over to the line and met the shop steward who brought the complainant down to a meeting room.  There were 4 persons in the room; the respondent’s HR manager, the complainant’s line manager and two union representative colleagues.   The complainant didn’t read the agreement; he didn’t understand it.  The complainant saw the monetary amount and the signatures for the respondent and witnesses which were already on the document.  The other signatures were not done in the complainant’s presence.  He said at the meeting that the agreement was all legal and he didn’t understand it.  The complainant signed the agreement and regretted it afterwards.

The complainant’s employment terminated on 3 May 2023 in accordance with the terms of the settlement agreement.  The complainant did not receive the payments due under the settlement agreement on the dates he was supposed to but ultimately received the €25,000 settlement payment provided for in the agreement.

Under cross-examination, the complainant confirmed that his first communication with the union official was on 26 April 2023.  It was in or around the end of February 2023 when the complainant first heard reference to the figure of €25,000; this came from the shop steward who told the complainant the respondent was willing to give him €25,000.  The complainant’s initial reaction was that the figure was not sufficient for the future; he wasn’t willing to take the money and give up his job.  The complainant could not recall anyone else talking to him about that figure or discussing with him a settlement agreement between the end of February and 26 April 2023.  The complainant wasn’t willing to take that money and give up the job.  The matter was ongoing in the complainant’s head.  The complainant did not say that he would take the sum offered until it was withdrawn the second time.  On 26 April 2023, the complainant was working as normal when the shop steward approached him and told him that HR were withdrawing the offer.  The shop steward told the complainant that the respondent’s position was that the complainant had had plenty of time to think about it.   The complainant telephoned a few people for advice who didn’t know what he should do.  After speaking with his friend, the complainant telephoned the union official in a panic and told him he was going to take the money offered.    The union official followed up with the complainant by text message in relation to signing arrangements and confirmed that the complainant did not have to come in until 3 May to sign and that the complainant would be paid up until 3 May.  The complainant did not have a clue what the union official meant about signing.  The complainant did not go to work until 3 May in accordance with the text message.  The complainant had not retained a copy of the text message. The complainant knew that going in to the respondent’s premises on 3 May was for a settlement agreement, but he did not know what was going to be in the document.  The complainant did not ask over the intervening days what he would be signing.  The complainant thought it would be explained in the meeting of 3 May, but it wasn’t.  The meeting on 3 May lasted less than ten minutes.  Prior to signing, the complainant was asked for his keys and whether he had cleaned out his locker.  The complainant understood that his employment would terminate and that he would get money in return for him not returning to work.  The complainant did not know when signing the document that there was no going back.

The complainant has not been fit for work since 3 May 2023.

The complainant said that he was not in his right frame of mind when he sent an email on 18 June 2023 to the respondent’s HR manager in which he referred to the agreement as binding.

Summary of sworn evidence of the complainant’s friend

When the offer of €25,000 came up, the witness told the complainant to request a draft version of the settlement agreement from the respondent as the complainant needed to read the agreement before signing it.

There was no reference to a settlement agreement when the witness initially became involved with the complainant in relation to his employment situation on 16 April 2023.  The settlement agreement and payment offered came up around the end of April 2023.  The witness told the complainant not to go with her views on the payment offered, that he needed to speak with his colleagues about it as they knew better.

Under cross-examination, the witness confirmed she had legal experience but was not legally qualified. The witness had not been aware of a discussion between the complainant and shop steward in February 2023.  The settlement agreement and offer of a payment came to the attention of the witness after she helped the complainant with a letter dated 16 April 2023 to his line manager.  The witness was aware that the complainant had been told on 26 April 2023 not to come in to work until 3 May however she did not understand why the complainant had been told that.  Between 26 April and 3 May, the witness told the complainant that he needed to read the settlement agreement and that he needed to go to an independent person for employment law advice; the complainant did not take the advice of the witness.   On 3 May 2023, the complainant telephoned the witness to say that he had signed an agreement.  The complainant was shaken as he described to the witness the signing circumstances. The complainant gave the witness a copy of the settlement agreement.  The witness saw the agreement for the first time after the complainant had signed it.   The witness read the document to the complainant three times and asked him whether he realised what he had signed.   The complainant told the witness that nobody had read the settlement agreement through with him, and that the union official was not at the signing meeting to go through it with him.  The witness discussed the settlement agreement and payment with the complainant as his friend.

The WRC has no jurisdiction to hear the case referred by the complainant under section 77 of the Employment Equality Act 1998 as the complainant waived his right to refer a case under the Act by signing a without prejudice waiver and release document in full and final settlement of any claims arising out of his employment with the respondent, including a case under the 1998 Act.

The complainant was given ample time to consider the content of a settlement agreement and had the benefit of his union official’s advice prior to him signing that agreement.  A sum of money was agreed between the parties and discharged in accordance with the terms of the agreement.

The respondent submitted a copy of the settlement agreement and referred to a waiver and release clause therein which detailed the release legislation waived, as agreed between the parties.   The Employment Equality Acts 1998-2015 were expressly referred to in the waiver and release clause. 

The agreement included a clause wherein it was acknowledged and agreed by the complainant that he had received independent advice from a named union official prior to signing the agreement, that the terms and conditions of the agreement had been explained to the complainant by the official and that the complainant was fully aware of the legal meaning and effect of the agreement.  An email from the complainant of 18 June 2023 demonstrated the complainant’s awareness that the agreement was of a binding nature. 

The respondent referred to Hurley v The Royal Yacht Club [1997] ELR 225 in support of its position that the complainant entered the settlement agreement with fully informed consent.  In such circumstances, the Adjudication Officer does not have jurisdiction to hear the case.

Summary of sworn evidence of respondent employee and shop steward

The witness has worked as a general operative with the respondent for over 30 years and is convenor of a union’s shop stewards committee.

The witness was aware that the complainant had been placed on a PIP and had received warnings in or around the end of 2022 and beginning of 2023 in relation to absenteeism, which included a final written warning.  The witness had explained to the complainant the gravity of the situation and that the respondent was initiating a procedure that could lead to the complainant’s dismissal.  The complainant asked the witness to enquire about whether there was any way of getting a few bob.  The witness spoke with the HR manager and the complainant’s line manager.  A figure of €25,000 was reached following negotiation.  It was initially the respondent’s position that there was no need for an offer of money to the complainant.  The witness negotiated with the respondent on this as the complainant’s colleague and as shop steward.  The witness did his best to arrive at a figure until he could get no further.   These negotiations were in early April 2023.   The witness spoke with the complainant about the figure reached.  The complainant told the witness that he needed a lot of time to think about it.  The witness regularly asked the complainant how he was doing, and the complainant told the witness he was discussing the matter with a named individual and would get back to someone on it.  The witness told the complainant that once he signed a settlement agreement, his time with the respondent would be finished and that he could get on with his life.  The complainant kept saying he understood but needed more time to think about it. This went on for a number of weeks over April.  During this time the complainant asked the witness about social welfare eligibility, so the witness contacted social welfare and gave the information to the complainant.  The HR manager informed the witness that enough time had been given and the offer was no longer available.   The witness communicated this to the complainant on 26 April 2023 who, in response, said he wanted a deal to be done and asked the witness to go back to HR and see if he could get the deal back on the table.   The witness was aware that the union regional officer had been made aware of the direction the respondent was going in and the witness was keeping that union official informed of developments.  The witness saw a draft of the agreement a week before the 3 May meeting when it was sent to him, the union official and the complainant.  The witness told the complainant that he needed to go through it carefully and get advice.   On 3 May 2023, the complainant arrived on site.  The witness met him in the locker area, asked the complainant if he was ok and accompanied him to the meeting room to sign the agreement.  In the meeting room, the complainant was asked to look through the document again.  The complainant read through the pages, and everybody signed the document.  The complainant was relieved and grateful after the meeting.

Under cross-examination, the witness said he received the agreement in an email, to which the complainant was copied, the week before the signing meeting.  When asked about the agreement bearing a date of 28 April 2023, the witness said it was emailed to them on Friday, 28 April 2023. The agreement was not physically handed to the complainant, it was emailed to the complainant and the witness asked the complainant to print it off and discuss it with whoever was helping him with it.  When asked who had sent the email to the witness, the witness said that the union official had sent it.  The witness did not meet with the complainant before the 3 May 2023 when the complainant came in for the signing meeting.

In re-examination, the witness said there was a lot of hiring going on in the respondent company at the time and there were no redundancies.  Where a work system is at the end of its lifetime, people are expected to move on to the next system in the cycle.

Summary of sworn evidence of a trade union regional industrial officer

The witness is a regional industrial officer with responsibility for the union membership in the respondent company.  He has advised north and south of the border on settlement agreements.  The witness was informed by the shop steward about the disciplinary proceedings in which the complainant was involved, the background to the complainant’s case and where it was leading.  The witness was astounded when he heard from the shop steward the amount of money being offered by the respondent.  The witness spoke with the complainant on 26 April 2023 after the respondent said the offer was off the table.  The witness told the complainant that if they managed to get the offer back on the table, the complainant needed to accept it because of his record and that otherwise the respondent would be managing the complainant out of the company.  With regards being satisfied the complainant understood the settlement agreement, the witness told the complainant that if the settlement agreement was not accepted, he would leave the company with nothing.  The witness became aware that the complainant was getting external advice after the settlement agreement was executed.  On 26 April, the witness told the complainant that he would try to get the offer back on the table.  The witness emailed the HR manager asking that the respondent reconsider.  The witness spoke with the complainant on a number of occasions on 27 April 2023. The witness told the complainant that the settlement agreement was in full and settlement.  The witness discussed the implications of the waiver with the complainant.  The complainant did not raise concerns with the witness about the wording of the agreement.  The complainant did say to the witness that he thought it was worth more and the witness told the complainant that he had never done a compromise agreement for such a large amount.  The witness received the settlement agreement document from the respondent on 28 April 2023.  The witness signed the document and sent it to the complainant’s work email address.  The witness was inundated with voice messages from the complainant on Saturday, 29 April 2023, saying that he had spoken with his girlfriend and was going to accept the offer and thanking the witness for his help.  The witness was not aware of any redundancies in the respondent company in or around this time.

Under cross-examination the witness confirmed having spoken to the complainant by telephone.  Regarding text messages on 26 April 2023, the witness thought it more likely that he had sent the complainant a text to say he would call later. The witness confirmed that he did not go through the settlement agreement with the complainant on 26 April as the conversation on that date was about the offer being off the table.  The witness saw the draft settlement agreement on 28 April 2023, and he sent the agreement to the complainant’s work email address. The witness and the complainant had spoken about the amount.  The witness told the complainant on 28 April not to go into work on 2 May.  The witness explained to the complainant on 28 April that if he didn’t accept the settlement agreement, he would be managed out of the respondent company.  The witness used the term ‘full and final settlement’.  The complainant did not make the witness aware that he wasn’t in work on 28 April or that he had not read the settlement agreement.  The witness was not aware to whom the respondent had sent the settlement agreement. 

In response to my questions, the witness said the settlement agreement was emailed to him the afternoon of 28 April 2023 and that the witness sent it on to the complainant at his work email address on the same date.  It was late afternoon or early evening of 28 April that the witness discussed the waiver and implications with the complainant; the language he used was that full and final settlement stops any claims being made.  He also told the complainant that if the agreement was not accepted, the complainant would be managed out of the company legally. 

The complainant referred a case under section 77 of the Employment Equality Acts 1998-2015 (the “Acts”) to the Workplace Relations Commission on 2 November 2023.   A question arose in relation to the entitlement of the complainant to bring proceedings under section 77 of the Acts and I determined investigation of the question as a preliminary issue in accordance with section 79(3A) of the Acts.  

In making my decision on the preliminary issue I have taken into account the evidence adduced at the hearings, the submissions of the parties and the case law relied upon by the parties. 

The complainant was employed with the respondent from in or around July 1996 until 3 May 2023. 

The background to the complainant signing the severance agreement is as follows.

The complainant was on a performance improvement plan in employment from in or around December 2022 or January 2023.  A without prejudice offer of a termination payment was mooted and whilst the evidence on how and exactly when this came up was inconsistent and unclear, it was common case that on 26 April 2023 the complainant contacted a union regional officer to talk to him about the respondent’s withdrawal of the without prejudice offer.  Copy of emails from the union regional officer to the respondent of 27 April 2023 and from the respondent to the union regional officer of 28 April 2023 were opened on the second hearing date.  The emails were referable to the complainant and a without prejudice settlement agreement.  The complainant was copied at his work email address on the union officer’s email of 27 April 2023; he was not copied on the response email of 28 April 2023 from the respondent.  It is apparent from the email of 28 April that the respondent confirmed to the union regional officer that it would offer the complainant a settlement agreement and that a meeting would take place on 3 May for the complainant to sign the agreement and collect his belongings.  The email of 28 April also requested the union regional officer to sign the agreement and scan it back to HR and to inform the complainant that he was not required to attend work in the meantime.  The complainant did not in fact attend work after 26 April 2023.  The complainant attended the respondent’s premises on 3 May 2023, and he signed a settlement agreement on that date in the presence of two union representative work colleagues, his line manager and the HR manager.   The complainant saw the settlement agreement for the first time at the meeting on 3 May 2023. 

The complainant’s evidence was that he did not receive independent advice on the settlement agreement and that the union representatives did not explain to him the terms or implications of signing the settlement agreement.

The settlement agreement is expressed to have been made on 28 April 2023 between the respondent and the complainant.  It is common case however that the complainant signed the settlement agreement on 3 May 2023.  The settlement agreement expressly provided that the terms of the agreement were in full and final settlement of all rights or claims that the complainant may have against the respondent, including in connection with his employment with the respondent or termination of employment, and a full and final release from any such obligation or claim, including claims under the Employment Equality Acts 1998-2015.  The respondent made payment to the complainant of a sum of €25,000 further to that settlement agreement.

It is permissible for an employee to make an informed waiver of his or her statutory rights.  It is clear from the case law on severance agreements and the matter of waiving statutory rights that the waiver is only valid if it is based on informed consent. This involves an employee having had an opportunity to take appropriate advice and understanding that the agreement brings their employment to an end with no recourse in the future to the protection of employment legislation in respect of their employment or its termination.

On the matter of informed consent, I am not satisfied, for the following reasons, that the complainant signed the severance agreement on 3 May 2023 in full knowledge of his legal rights and the implications of the agreement, and in particular that by entering into the agreement, he waived his right to bring any case or claim against the respondent.  

The shop steward first saw the settlement agreement on 28 April 2023.  The complainant was not in work after the 26 April and the shop steward did not meet with the complainant in advance of 3 May when the complainant attended for the signing meeting.  The information provided by the shop steward to the complainant in relation to a settlement agreement was that once it was signed, the complainant’s employment with the respondent would finish and the complainant could get on with his life.  The shop steward provided online information concerning unemployment benefits to the complainant in the days preceding 26 April 2023.  On balance, I am not satisfied that the shop steward advised the complainant at any stage of the complainant’s entitlements under employment rights legislation or on the terms or implications of signing the settlement agreement.

The union regional officer was sent copy of the settlement agreement by the respondent on Friday, 28 April 2023.   The union regional officer’s evidence was that he sent a copy of the agreement to the complainant’s work email address on the same date.  The complainant was not in work after 26 April 2023, and it was undisputed that the complainant did not have work devices upon which he could access his work email account outside of the workplace.  I further note that there was no documentation before me evidencing the sending of the settlement agreement to the complainant.   I am satisfied that the first time the complainant saw the settlement agreement was when he attended the signing meeting in the workplace on 3 May 2023.  On review of the settlement agreement, I am satisfied that the detail of that agreement, including the implications of the agreement, was not properly explained to the complainant.  The document listed over twenty employment statutes to which the waiver applied, which included the Employment Equality Acts 1998-2015.  Whilst I accept the union regional officer’s evidence that he told the complainant that the settlement agreement was ‘in full and final settlement’, I am satisfied that when the union regional officer was discussing the settlement agreement with the complainant, the complainant had not had sight of the settlement agreement and that any discussion with the complainant was in the abstract and about settlement agreements in general.  I note also that the first communication the complainant had with the regional officer on the payment offer or settlement agreement was 26 April 2023, and that communication in the material timeframe was by text or telephone call.  I am not satisfied on the evidence that the complainant was advised by the union regional officer of his entitlements under employment rights legislation. 

There was a conflict between the evidence of the complainant and that of the union regional officer and shop steward regarding advice given on the implications of the settlement agreement and the meaning of full and final settlement.  I find it unnecessary to resolve that conflict because I am satisfied having regard to the decision of the Circuit Court in Hurley v Royal Yacht Club [1997] ELR 225 that the obligations outlined therein are obligations on the part of the respondent.  In other words, it is ultimately for the respondent to ensure that the complainant could give informed consent and that he was afforded an opportunity to take appropriate advice.  There was no evidence before me of the respondent having advised the complainant in writing to seek independent advice, legal or otherwise, prior to agreeing to the terms of settlement, or indeed of any direct communications from the respondent to the complainant on the matter of termination of the complainant’s employment on 3 May 2023, save for the settlement agreement provided to the complainant on that date.  Whilst I appreciate the respondent was engaged in negotiations with union representatives, who were representing the complainant’s interests, I am not satisfied on the facts of this case that the respondent could assume the complainant had the benefit of advice from the trade union official or shop steward.  In this regard, I note the following material facts.  The engagement up until 27 April 2023 was between the shop steward and the respondent on a without prejudice offer.   The complainant’s first interaction with the union official in relation to a payment or the settlement agreement was on 26 April 2023.  In an email of Friday, 28 April 2023, from the respondent to the union official, the respondent offered the complainant a without prejudice settlement agreement.  In the same email, the respondent asked the union official to sign the agreement and scan it back to the respondent and for a union representative to meet with the respondent on 3 May 2023 for the complainant to sign the agreement and collect his belongings and hand in his access card.   It was the union regional officer’s evidence that he sent the settlement agreement to the complainant’s work email address on 28 April 2023.  The complainant was not in work after 26 April 2023. 

There was no evidence of follow-up or contact by the respondent with the complainant in relation to the settlement agreement or any other matter between 27 April 2023 and the complainant’s attendance at a signing meeting on 3 May 2023.    I am satisfied that there was no explanation of the terms of the agreement provided at the meeting of 3 May 2023.  There is also the matter of a clause in the settlement whereby the complainant acknowledged and agreed “that before signing this Agreement he has received independent advice from […] and that the terms and conditions have been explained to him by […] and that he is fully aware of the legal meaning and effect of this Agreement.”  The independent advice clause in the settlement agreement was not brought to the complainant’s attention or clarified by the respondent with the complainant. There was no evidence before me of the respondent having made efforts at the meeting of 3 May 2023 to determine the complainant’s understanding of, and advice obtained on the agreement, to bring to the complainant’s attention particular clauses of the agreement or of having made any inquiries in this regard. 

I do not accept the submission that the complainant was given ample time to consider the content of the settlement agreement.  The complainant was not afforded an opportunity to go through the settlement agreement in his own time and in a private manner on 3 May 2023.    I accept the complainant’s evidence that he was daunted by the document provided to him at the settlement meeting.  I consider the signing meeting on 3 May to have been a pressurised situation for the complainant. 

Finally, I have carefully considered the issue of consent having been freely given by the complainant.  The context giving rise to the without prejudice offer and the settlement agreement was a feature of the discussions between the union representatives and the complainant on the settlement agreement.  Evidence was tendered on behalf of the respondent that the complainant was told he needed to accept the settlement agreement because of his record, that otherwise the complainant would be managed out of the company and that if the complainant did not accept the agreement, he would leave the company with nothing.  This evidence supports the complainant’s evidence that he was under pressure to sign the settlement agreement and my conclusion that the waiver of employment rights was not based on the free and informed consent of the complainant.

For completeness, I am not satisfied that the complainant taking advice from friends or their advice that he obtain legal advice is sufficient to constitute the complainant having been freely and fully informed on the settlement agreement, and particularly so where the advice was provided without having had sight of the settlement agreement document.

In conclusion, I do not find that the waiver contained in the settlement agreement is valid and enforceable and, in such circumstances, I find that I am not precluded from investigating the case referred to the Commission under the Acts.

For the reasons set out above, I do not find that the waiver contained in the settlement agreement is valid and enforceable.  Accordingly, I find that I am not precluded from investigating the case referred by the complainant to the Commission under section 77 of the Employment Equality Acts 1998-2015.

Section 79(3A) – Preliminary issue – Entitlement of complainant to bring proceedings – Settlement Agreement - Section 79(6) – Decision