Complainant

Respondent

Parties

Brendan  Flanagan

Ulster Bank Ireland Designated Activity Company

Representatives

James McEvoy, Work Matters Ireland

Tom Mallon BL instructed by Arthur Cox LLP

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-00064023-001

10/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00064023-002

10/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 5 of the Central Bank (Supervision and Enforcement) Act, 2013

CA-00064023-003

10/06/2024

The Complainant’s employment was terminated by reason of redundancy on 31 January 2024.

The Complainant contends that his dismissal was not the result of a genuine redundancy and was in fact the consequence of him making a protected disclosure.

The Respondent contends that the Complainant signed a settlement agreement which confirmed that the enhanced redundancy payment made to him was in full and final settlement of all claims which may be made by him against the Respondent. 

Preliminary Issue

At the outset of the hearing, the Respondent’s representative requested that the Adjudication Officer dismiss the complaints on the basis that a settlement agreement between the parties had been validly signed and executed which meant that the Complainant had waived his right to pursue these claims.  The Respondent’s representative requested that this matter be addressed as a preliminary issue.

Background

The Complainant was employed by the Respondent for 15 years and 7 months. He commenced employment on 10 June 2008 and his employment was terminated by reason of redundancy on 31 January 2024.  

On 19 February 2021, the Respondent announced a phased withdrawal of all its banking activity and associated services from the Republic of Ireland. As part of the withdrawal from the Irish market there have been approximately 1,300 employees who have exited on redundancy since 2022 and a further 540 who have transferred to other financial institutions in accordance with the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (the “TUPE Regulations 2003”). 

In June 2021, the Respondent and the Financial Services Union (the “FSU”) agreed a collective agreement for the withdrawal of UBIDAC from the Republic of Ireland (the “Collective Agreement”).

On 24 May 2023, the Complainant along with 800 other colleagues was put at risk of redundancy.   Of those 801 employees, 438 employees were made redundant in 2023 and 162 (including the Complainant) were made redundant in the first half of 2024 i.e. 600 or 75% of those who were put at risk of redundancy in May 2023 have left the Bank. 

On 12 October 2023, the Complainant was given formal notice of redundancy and was offered a settlement amount as per the terms of the Collective Agreement (a total lump sum of €145,543).

Prior to the termination of his employment, the Complainant signed the Redundancy Pay Acceptance Form (the “Settlement Agreement”) accepting these terms in full and final settlement of all claims, rights of action and demands in connection with the Complainant’s employment with the Respondent. The Respondent transferred the lump sum to the Complainant on 16 February 2024. 

Settlement Agreement

On 31 October 2023, in accepting redundancy from the Respondent, which included an ex-gratia payment, the Complainant signed a settlement agreement which confirmed that the redundancy payment made to the Complainant was in full and final settlement of all claims which may be made by him against the Respondent, including claims under the Unfair Dismissals Acts 1977 to 2007, the Protected Disclosures Act 2014 and the Redundancy Payments Acts 1967 to 2007. As outlined above, the Respondent paid the Complainant the sum agreed in the waiver agreement. 

Paragraph 4 of the Settlement Agreement at states that:

 “I further acknowledge and agree that the payments to be made to me, as set out in the aforesaid letter, shall be in full and final settlement of all claims, rights of action and demands (if any) made and/or which may be made by me (whether or not I am currently aware of them) in connection with my employment with the Bank and the termination of such employment against the Bank, its parent company or any of its or their affiliated, subsidiary, associated companies and/or each and all of their respective officers, directors, employees and agents and whether such claims arise under contract, in equity, at common law, in tort, or pursuant to statute (including, without limitation, any and all claims that may be made in Ireland pursuant to the Redundancy Payments Acts 1967 to 2022, DataProtection Act 2018, Minimum Notice and Terms of Employment Act 1973 to 2005, Organisation of Working Time Act 1997, Payment of Wages Act 1991, Protection of Employees (Part Time Work) Act 2001, Protection of Employees (Fixed Term Work) Act 2003, Carers Leave Act 2001, Parental Leave Acts 1998 and 2019, Adoptive Leave Acts 1995 and 2005, Maternity Protection Acts 1994 to 2004, Paternity Leave and Benefit Act 2016, Safety Health and Welfare at Work Act 2005 to 2014, Employees (Provision of Information and Consultation) Act 2006, Protection of Employment Act 1977 to 2014, Terms of Employment (Information) Act 1994 to 2014, European Communities (Protection of Employees on Transfer of Undertaking) Regulations 2003, Employment Equality Acts 1998 to 2021, the Equal Status Act 2000 to 2021, the Industrial Relations Acts 1969 to 2019, the Unfair Dismissals Acts 1977 to 2015, the Protected Disclosures Acts 2014) to 2022, Criminal Justice Act 2011, Employment (Miscellaneous Provisions) Act 2018, Workplace Relations Act 2015, Workplace Relations (Miscellaneous Provisions) Act 2021, Pensions Acts 1990 to 2018 Employment Permit Acts 2003 to 2020, National Minimum Wage Acts 2000 and 2015, Protection of Employees (Temporary Agency Work) Act 2012, Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007, Protection of Young Persons (Employment) Act 1996 and/or and all regulations made under such legislation and/or pursuant to other employee protection legislation and/or otherwise howsoever arising, including for the avoidance of doubt, any claim for personal injury”.  

Paragraph 6 further states that: 

“I further acknowledge that I have had an opportunity to take such advice as I consider appropriate, including legal advice prior to signing this form of acceptance and that I do so voluntarily and with full understanding that I am releasing and compromising any and all claims and demands made and all other claims and demands of every nature and description that may be made by me against the Bank, its corporate parent, subsidiaries, affiliated and associated companies and each of their respective directors officers, employees and agents.”  

There is no provision in the Unfair Dismissals Acts 1977, as amended, which prohibits or renders invalid any such agreement being reached, even where same has the effect of waiving an employee’s statutory rights and, in such circumstances, it is submitted that the Complainant’s complaint is prohibited and excluded by virtue of the agreement reached between the parties and, therefore, that the Adjudication Officer has no jurisdiction to hear this complaint.   

There is a plethora of case law whereby the WRC and the Labour Court have deemed that a waiver precludes an employee from bringing a claim under the Unfair Dismissals Act to the WRC.  In this regard, the Respondent relies on Fowler and Bergin v Hardware Distributors DublinLtd UD872/94 & UD873/94.  In this case, an agreement was negotiated between the respondent and the trade union representing the claimants on redundancy terms. The claimants signed a document which included a section excluding any claim under the Unfair Dismissals Act 1977. The Employment Appeals Tribunal held that the claimants were precluded from pursuing a claim for unfair dismissal arising from their selection for redundancy.  

In Sunday World v Kinsella FTC/06/02, the Labour Court stated that: 

“It is clear from the authorities that a provision in a statute prohibiting contracting out does not prevent parties from lawfully agreeing to settle or compromise claims based on the statute. There is, however, often a subtle but substantial difference between a genuine bargain to settle or dispose of a claim, which is lawful and enforceable, and an attempt to exclude or limit the Act, which is void and unenforceable.”  

This issue has been considered more recently in the matter of Derek Darbey v St Patrick’s Hospital ADJ-00049025 wherein the Adjudication Officer commented that the “implications of these cases for the complainant and the line of legal authority they represent could hardly be clearer” and thereafter repeated the “truism as set out [in Healy v Irish Life Assurance plc, DEC-E2015-002] which is that “full and final means just that, it is full and final.”

The Complainant submits that the agreement should be set aside as it was signed under duress.  The Respondent rejects this argument in circumstances where there is no evidence for same.  

Additionally, the Respondent sent the documentation to the Complainant on 12 October 2023 and received the signed documentation, including the signed and witnessed Settlement Agreement on 31 October 2023 i.e. after almost three weeks’ deliberation on the part of the Complainant.   The ex-gratia payments were subsequently made to the Complainant. There is nothing to suggest that he was under pressure to sign the Settlement Agreement and it is to be noted that until the commencement of these proceedings, the Complainant never challenged the validity of same and has not at any time refunded or attempted to refund the payment made. 

The Complainant further alleges that he felt he had no other option and was falsely put under the impression that the Respondent would actively seek an alternative position for him.  Both sets of correspondence clearly set out the options available to the Complainant including both voluntary redundancy and redeployment.  The Complainant’s argument that he had no other option is untenable. If the Complainant did not want to accept the terms of the Settlement Agreement, he could have opted to accept only his statutory redundancy payment.

The Settlement Agreement precludes claims being brought once the redundancy payment has been made irrespective of whether such claims arise under contract, in equity, at common law, in tort, or pursuant to statute. The Settlement Agreement specifically lists certain statutory provisions but includes the caveat ‘including, without limitation’. The Unfair Dismissals Act and the Protected Disclosures Act are specifically enumerated. The Central Bank Act is not however, this broad ‘without limitation’ language ensures the Central Bank Act falls within the waiver.

The Complainant submits that following his making a protected disclosure to the Respondent, he was sidelined and excluded in the workplace and deliberately prevented from working to the full capacity of his role.   Furthermore, the Complainant also submits that as a consequence of this protected disclosure he was unfairly selected for redundancy and subjected to an unfair redundancy process, which resulted in the termination of his employment.

The Redundancy Process

The Complainant submits that there was no meaningful, documented consultation process. No alternative position was examined, and no alternative working arrangement was considered.  The Complainant was the only employee made compulsorily redundant. None of his colleagues doing the same or similar work was considered for redundancy or made redundant at that time.  

The notice of redundancy provided to Complainant on 6 October 2023 did not advise of appeal rights and mentioned attempts at redeployment.  The notice letter of 12 October 2023 mentions an appeal, but the Complainant disregarded this because of commitments regarding redeployment efforts which had been made by the Respondent. 

The waiver dated January 2024, months after the letter of 12 October 2023, did not provide for notice. The Complainant believed that he had the right to appeal at that point. 

The Complainant signed a settlement agreement on 31 October 2023.  The Complainant submits that the agreement should be set aside as it was signed under duress as he felt he had no other option and was falsely put under the impression that the Respondent would actively seek an alternative position for him. No such endeavours were undertaken. 

In Rachel Ahern & Acorn Insurance Brokers UD/22/81, the respondent company put forward that the employee had signed a settlement agreement and therefore had waived her rights to a claim of unfair dismissal. The complainant asserted that she had no other option but to sign the agreement. The Court found in the complainant’s favour.   

Legal Advice

The Complainant was not at any point advised either orally or in writing that he was entitled to, and should take, legal advice on the matter. In this regard, in Hurley v the Royal Yacht Club [1997] ELR 225 Buckley J in the Circuit Court considered a waiver clause in an agreement in the context of the Unfair Dismissals Act 1977, as amended, and having concluded that there must be informed consent to such a waiver later in his judgement set out what this requires:

“I am satisfied that the applicant was entitled to be advised of his entitlements under the employment protection legislation and that any agreement or compromise should have listed thevarious Acts which were applicable, or at least made it clear that they had been taken into account by the employee. I am also satisfied that the applicant should have been advised in writing that he should take appropriate advice as to his rights, which presumably in this case, would have been legal advice. In the absence of such advice I find the agreement to be void.”

Direct evidence of the Complainant under oath

The Complainant said that during the process that led up to the settlement agreement, he was never advised to take legal advice, and nobody discussed it with him.  The Complainant said that he signed the settlement agreement because he had no other option.  The Complainant said that when he signed the settlement agreement, he was under the impression that everybody was being made redundant.  It was only subsequently that he found out that he was the only person from his team who had been made redundant.  He felt that the situation had been misrepresented and that he was being made redundant and not his job.

The Complainant said that he was under unreasonable duress at the time he signed the agreement. It was a very stressful time for himself and his family because his daughter had a significant health issue.  He does not believe that he was in the right frame of mind to make such a decision. The Complainant said that he signed the settlement agreement because he believed that he had no alternative.

Cross-examination of the Complainant by Mr Mallon BL

The Complainant confirmed that he recalled reading and signing the settlement agreement.  He also confirmed that there was nothing that he did not understand in the settlement agreement.

The Complainant confirmed that he had received and understood the Respondent’s cover letter of 12 October 2023 to which the settlement agreement was appended.

The Complainant confirmed that he had four weeks from receipt of the settlement agreement to make up his mind.

The Complainant confirmed that he was at work at that time and that he had been back in work since August 2023 after back surgery.  The Complainant confirmed that he did not seek time off work during that period. 

The Complainant confirmed that he did not indicate to the Respondent that he was not able to make a decision regarding the settlement agreement.  The Complainant confirmed that he is not relying on a medical certificate to support his position.

Mr Mallon BL then proceeded to bring the Complainant through the settlement agreement. 

The Complainant confirmed that he understood the contents of paragraph 1 which read as follows:

“I acknowledge receipt of the attached letter from Ulster Bank Ireland DAC (the “Bank”) dated 12/10/2023 and hereby confirm and acknowledge my acceptance of the terms and conditions of that letter.  I also hereby acknowledge and confirm that the termination of my employment with the Bank shall take effect on 31/01/2024 unless I secure another role in advance of this date.”

The Complainant said that he had send an email to his line manager querying the selection around redundancy prior to receiving the settlement agreement, but he did not receive a response.

The Complainant said he did not remember reading paragraph 4 of the settlement agreement (cited in full in the Respondent’s submission) at the time he signed the settlement agreement.  He did, however, confirm his understanding at the hearing.  In particular, he confirmed his understanding of ‘acknowledge and agree’;‘full and final’; ‘statute’; and ‘without limitation.’

Mr Mallon BL asked the Complainant if he understood that the settlement agreement prohibited him from taking claims under the statutes listed in the agreement.  The Complainant replied that he did not take that out of it.  He said that he was not familiar with the legislation.

Mr Mallon BL asked the Complainant if he knew the settlement agreement excluded him from bringing a complaint to the WRC.  The Complainant replied, “no – not at the time”.

Mr Mallon BL asked the Complainant if there was anything in paragraph 6 of the settlement agreement (cited in full in the Respondent’s submission) which he did not understand.  The Complainant confirmed that there was not.

The Complainant confirmed that he understood the meaning of ‘voluntary’; ‘full understanding’; ‘claims and demands’; ‘releasing’ and ‘compromising’. He also confirmed that he understood the meaning of ‘I acknowledge and agree that once I sign and return this Form to the Bank, the terms of the agreement become binding on me’. 

The Complainant confirmed that he would see similar documents of undertaking during the course of his work.  The Complainant further confirmed that he was a prudent person.

The Complainant said he did not have any other option and that taking statutory redundancy was not an option.

The Complainant explained that he was going through a significant period of duress when he was considering the settlement agreement.  He said that he did not take time to think about it due to his personal circumstances at the time.  The Complainant said that his Line Manager knew that he was under stress at the time.  The Complainant confirmed that he was dealing with the complexities of his job at the time.

The Complainant said that in March/April 2024 when his daughter’s treatment was complete, he thought about what had happened and contacted his representative for advice.  He confirmed that he did not write to the bank.

Questions from the Adjudication Officer

The Complainant confirmed that he had an MSc in Financial Services.  He further confirmed that he was an Operations Manager in the Remediation Department of the Respondent organisation which he considered to be a mid-level position.

The Complainant said that he had not taken legal advice as it was not a priority at that time.

Conclusion 

At the outset of the process, the Complainant made it clear to the Respondent that not only was he himself dealing with health concerns, but he was also suffering extreme stress and anxiety due to his daughter’s serious illness, between October and December 2023.

Following the Respondent’s announcement to exit the Irish market, it was understood that the leaving dates provided to everyone were flexible, given the ongoing workload and project activities. It was common knowledge that these dates were likely to be adjusted.  Employees initially given a departure date of March 2024 had their dates extended to June 2024, and they have since been further pushed to March 2025, with the possibility of additional extensions.  The Complainant submits that if he knew that some of his former colleagues would still be employed by the Respondent, he would not have signed the settlement agreement.  The Complainant contends that he signed the settlement agreement in a complete misunderstanding.

When calculating any amount of that might be due, the Complainant relies on the decision in Kieran Murray v Sherry Garden Rooms Limited ADJ-00028766 where it was decided by the Adjudication Officer that section 19 of the Unfair Dismissals Act provides for repayment of a redundancy lump sum where an employee is reinstated or re-engaged, but not where an award of compensation is made. The Adjudication Officer also found it is not just or equitable to deduct a lump sum already paid, as the lump sum is based on service and financial loss (excluding any loss or diminution) and redress under the Unfair Dismissals Act is based on actual or prospective loss. 

The Respondent submits that, by signing a settlement agreement in which he compromised his right to take any claims against the Respondent, the Complainant has compromised his right to maintain these proceedings.  The Complainant rejects the Respondent’s contention on the basis that he was never advised that he should take legal advice; he was not given a right of appeal; and he was under a significant level of pressure at the time he signed the settlement agreement.  The matter for me to decide, therefore, if I have the jurisdiction to investigate these employment rights complaints.

Generally speaking, employees are free to enter into comprise agreements regarding their statutory rights except where legislation explicitly prohibits such agreements.  In Board of Management of Malahide Community School v Conaty [2019] IEHC 486, Simons J noted that the courts have taken a practical approach and “the case law indicates that it is permissible for an employee to make an informed waiver of his or her statutory rights”.

Simmons J relied on the principle of "informed consent" as set out in the judgements in Hurley v Royal Yacht Club and Sunday Newspapers Ltd v Stephen Kinsella and Luke Bradley [2008] 19 E.L.R. 53, when finding that a person cannot be found to have waived a statutory right unless they make an informed decision to do so.  

In Sunday Newspapers Ltd, Smyth J held that “the decided cases indicate that a party may enter into an agreement in relation to his or her statutory rights and the question of whether or not such rights have been compromised is a matter for the proper construction of the agreement itself. In the instant case the agreement is expressly stated to be in full and final settlement and that means what it says. It says so in express terms referable to enumerated Acts and all or any employment legislation in respect of any and all outstanding entitlements whether statutory or otherwise stated or as yet unstated.”

In applying these principles to the settlement agreement concluded between the parties, I am satisfied that the settlement agreement was intended as full and final settlement of any existing and potential claims arising from the employment relationship between the parties including a complaint under the Unfair Dismissals Act 1977 and the Redundancy Payments Act 1969 which are explicitly mentioned in paragraph 4 and the Central Bank (Supervision and Enforcement) Act, 2013 which, in my view, is encompassed by the phrase ”including, without limitation” also in paragraph 4.

In my decision making, I must have regard to the dicta of Buckley J in Hurley that an employee who is faced with the option of compromising his rights in return for an enhanced severance pay must be advised to seek legal advice.  I accept that the Respondent did not explicitly advise the Complainant to seek legal advice before signing the compromise agreement.  However, I do note that paragraph 6 of the agreement states that “I further acknowledge that I have had an opportunity to take such advice as I consider appropriate, including legal advice prior to signing this form of acceptance …”.  The Complainant is not ignorant of the how contracts work.  He is a banker of long standing with a MSc in Financial Services who worked in the mortgage area.  By his own admission, the Complainant is a prudent man.  By signing the settlement agreement, the Complainant agreed that he had sought whatever advice he saw fit, including legal advice.  The fact that he chose not to do so, was a matter for himself.  I am of the view that the Complainant fully understood to import of what he was signing when he signed the settlement agreement. 

I further note that the Complainant was given four weeks in which to consider the settlement agreement before his was required to return it to the Respondent.  This would seem to me to be a reasonable amount of time.  I note that despite undoubtedly being under pressure due to his daughter’s very serious illness, during the four weeks which he had to consider the settlement agreement, the Complainant did not inform the Respondent that he was not in a position to make a decision regarding the settlement agreement due to his personal circumstances. I also note that he continued to work during that time.

In conclusion, I am satisfied that the Complainant freely entered into a compromise agreement in which he accepted €145,543 in full and final settlement of his rights under the Unfair Dismissals Act 1977, the Redundancy Payments Act 1969 and the Central Bank (Supervision and Enforcement) Act, 2013.  I am satisfied that the Complainant signed the settlement agreement based on his informed consent to relinquish his rights under this legislation, that he signed the settlement agreement which included the undertaking that he had sought whatever advice he deemed appropriate including legal advice, and that he freely decided not to do so.  The Complainant never made the Respondent aware that his signing of the agreement was contingent on him being offered alternative employment nor was it contingent on him being afforded a right of appeal.  Likewise, the Complainant did not inform the Respondent that his agreement was contingent on his colleagues also been made redundant.

The Complainant contends that he did not have any alternative to signing the agreement.  He did, albeit not a very palatable one.  The settlement agreement provided the Complainant with the opportunity not to accept the agreement and to accept only statutory redundancy.  He chose not to do so.

Taking all of the above into account, I am satisfied that, with full knowledge and understanding of the implications, the Complainant freely entered into a compromise agreement with the Respondent which prevents him from referring complaints against the Respondent to the WRC under the legislation listed in, or encompassed by, paragraph 4 of the settlement agreement.  For this reason, I find that I do not have the jurisdiction to inquire into these complaints.

CA-00064023-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

In conclusion and having regard to all the circumstances of the complaint, I find that this complaint is not well founded.

CA-00064023-002 - Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

In conclusion and having regard to all the circumstances of the complaint, I declare that this complaint is not well founded.

CA-00064023-003 - Complaint seeking adjudication by the Workplace Relations Commission under Schedule 5 of the Central Bank (Supervision and Enforcement) Act, 2013

In conclusion and having regard to all the circumstances of the complaint, I declare that this complaint is not well founded.

Compromise Agreement