Employment Spotlight: Bank of Ireland loses constructive dismissal case for unauthorised ‘Hybrid’ role

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Tara Cassidy v Bank of Ireland 2022

Background

The employee commenced employment with Bank of Ireland in December 2018 as a  Customer Advisor.   In December 2019, the Bank advertised a new ‘Hybrid’ role. The Bank informed its employees if there was an internal appointment, that person  would receive a pay increase to their existing salary.  The employee applied for the role on the 16th December 2019.   In response,  she received an email setting out an overview of the role, and was  advised that her line manager would announce the staff moves the following day.  It was after this communication, that the employee claimed she began working in the new role.   In doing so, the employee claimed that she gave up her office, and trained her replacement over the proceeding weeks.

Approximately ten months later, the employee was informed by senior management that the role was not authorised and consequently, she would not receive a pay increase. Following this,, the employee resigned from her employment in March 2021, claiming that the non-recognition of her role  had caused her significant stress and eroded her trust in senior management.  Thereafter, she referred a complaint of constructive dismissal to the Workplace Relations Commission (“WRC”) under Section 7 of the Terms of Employment (Information) Act, 1994 (as amended) and Section 8 of the Unfair Dismissals Acts 1977-2015 (as amended).

Submissions

During the course of her evidence, the employee submitted that she was encouraged to apply for the new hybrid role by her line manager. The employee also submitted that prior to her resignation, she continually raised the issue  with her line manager and then formally with senior management in December 2020.   Following a back and forth exchange, the employee then raised her concerns directly with HR in February / March 2021, who  advised her that she could submit a formal grievance.  However, when the employee raised a formal grievance, she had already formally resigned.   In response, HR  informed the employee that it was not possible to raise a formal grievance as she was no longer employed.

The Bank maintained that the hybrid post was a proposal only, and they were not aware of it being formally offered as a job. The employee’s line manager gave evidence on behalf of the Bank, noting that it would have taken weeks to back-fill the employee original post, and she would not have been able to commence the new role until March 2020. He further stated that when COVID arose , it changed operations  due to the restrictions on customer meetings, which was alleged to be a key part of the hybrid role. The line manager also claimed to have no direct involvement in the appointment process. He did however concede that he was aware of the employee frustrations over the situation, and that she was never asked to revert to her previous customer advisor role.

Adjudication Findings

The Adjudicator Officer (“AO”) referred to the established tests  for constructive dismissal, the ‘contract test’ and/or the ‘reasonableness test’.

The AO noted that no formal contract was issued for the hybrid role and that conflicting evidence was given in relation to the role being carried out. The employee claimed she had been carrying out the hybrid role,  whilst the Bank maintained that she was merely engaging in an enhanced version of her existing role.

The AO stated that the contract test was relevant to the employee in these circumstances, as she had been carrying out a role for a prolonged period, under the presumption it was authorised. Whilst the Bank asserted otherwise, there was no communication putting her on notice that the post was not authorised. When informed of the non-authorisation, the employee was left in limbo. As such, the AO considered whether this was sufficiently serious so that the contract of employment was deemed to be frustrated beyond repair. In contrast, the AO noted that the ‘reasonableness test’ allows for an objective assessment of the employer’s behaviour and to a less extent, the employee’s behaviour. Having regard to the Bank’s behaviour, the AO noted the following:

Prior to August 2020 there was a deficit of communication which led to both parties being at cross purposes. Although the respondent gave evidence that COVID changed matters they failed to communicate this to the complainant in March 2020. However, both parties were aware from August 2020 onwards that there was an issue so the correspondence from this date warrants attention.”

Following assessment of the correspondence, the AO concluded  the employee had raised the non-recognition of her role formally with management as early as December 2020, (albeit no reference was made to the grievance procedure).

In his finding the AO stated that the employee had been treated unfairly by the Bank. The employee had formally raised her issues with management, and at a very late stage management suggested making a formal grievance. It was therefore no fault of the employee for not raising a formal grievance  sooner. The AO further concluded that the Bank simply changed their mind in respect of the new hybrid role, as there was no attempt by management to explain their change of approach. For the above reasons the AO found that the employee had little option but to resign. The AO found that the employee had been unfairly constructively dismissed and awarded €3,810 in compensation, which was the equivalent of six weeks’ pay.   The award was limited  by the fact that the employee had obtained new employment shortly after her resignation and the sum recoverable was limited to financial loss.

Spotlight for Employers

A Constructive dismissal arises where an employee is forced to leave their job due to the conduct of their employer. The finding in this case reaffirms the view, that where the bond of trust between the employer and employee has broken down beyond repaid, a resignation by reason of constructive dismissal will be justified. In the above case the Complainant’s work went unrecognised for over 10 months, with no prospect of progression. There was no communication by the Respondent and the Complainant was left in limbo, and afraid to apply for another position in case the same scenario arose  again.

Whilst failure to utilise the grievance procedure, will generally be fatal to any claim of constructive dismissal – this case provides authority that an adjudicator will accept efforts by an employee to raise issues, without expressly referring a resolution through a formal process. In other words, where an employee brings the matter to management’s attention and satisfactory steps are not taken by the employer thereafter, the employee will not be prejudiced in their claim for constructive dismissal for not having utilised the grievance procedure.

This article was co-written by Don McGann (Partner), Siobhan McGowan (Partner) and Robin Hyde (Associate).

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