In February 2015, the Equality Tribunal held that it had no jurisdiction to hear a claim brought by an employee of Tesco Ireland Ltd in circumstances where a voluntary redundancy agreement had previously been reached between the parties. The Complainant claimed that she had been discriminated against on the ground of disability in terms of failure to provide reasonable accommodation, discriminatory dismissal, promotion and access to employment. 

BACKGROUND

The Complainant submitted that she suffered from a disability, namely, Lupus (the Respondent acknowledged it knew of the Complainant's disability from 2009 onwards). The Complainant worked at the café in one of the Respondent's stores.

The Complainant submitted that she applied for several positions within the Respondent’s store but was unsuccessful in her applications. She claimed that during an interview for a position in one of the petrol stations, the interviewer referenced her disability by questioning her ability to do the required physical work. The Complainant was unsuccessful in this application.

In December 2011, the Respondent's café function was outsourced to a major catering firm to which the café staff were transferred. Rather than transferring to work for the catering firm, and after declining to take an alternative role on the Respondent’s shop floor, the Complainant elected to take voluntary redundancy. Three days after her acceptance of the offer of voluntary redundancy, the Complainant signed a voluntary redundancy agreement in which it was stated that the settlement payment would constitute full and final settlement of any and all claims which she may have against the Company.

The Respondent denied discriminating against the Complainant and submitted that all claims against the Respondent were expressly settled in the voluntary redundancy agreement.

 DECISION IN RESPECT OF DISCRIMINATION

The Tribunal found that there was no case for discrimination in terms of any alleged failure to provide reasonable accommodation as the only reasonable accommodation ever sought by the Complainant was permission to wear a hair net instead of a hat, which was granted by the Respondent. The Tribunal also noted that on the Complainant's own evidence, she was able to carry out her duties.

The Tribunal found that the Complainant's disability played no part in the Respondent's offer and the Complainant's acceptance of voluntary redundancy. The Tribunal held that the Complainant's dismissal was not discriminatory.

The Tribunal found that there was no case for discrimination in terms of access to employment as the Complainant had been an employee of the Respondent for over 11 years.

The Tribunal did accept that the Complainant's complaint against the Respondent in relation to her application to work at the Respondent's petrol station was a valid complaint by virtue of the fact that she had described the situation quite clearly in her submissions and therefore the Respondent was not prejudiced.

DECISION IN RELATION TO THE VOLUNTARY REDUNDANCY AGREEMENT

(Decision in relation to whether the Terms of the Voluntary Redundancy Agreement meant that the Tribunal did not have jurisdiction)

So, the question remained in relation to whether the terms of the voluntary redundancy agreement allowed the Complainant to proceed with this one remaining complaint in relation to her unsuccessful application for the transfer to the Respondent's petrol station.

The Tribunal considered the cases of Sunday Independent Newspapers v. Stephen Kinsella and Luke Bradley, HC 2008, E.L.R. 53 and P.M.P.A v Keenan [1985] I.L.R.M. 173 in which the Courts had previously considered the issue of a worker bringing proceedings after signing a settlement agreement.

In Sunday Independent Newspapers, less favourable treatment in terms of how the severance payment was calculated was alleged whereas in P.M.P.A, a claim was made in respect of alleged less favourable treatment which arose before the signing of the agreement. The Tribunal cited, with approval, the following passage from Smyth J in Sunday Independent Newspapers:

"In Keenan's case there was no evidence that the defendant's claim was included in the settlement which covered their claims. In the instant case the very claim made subsequent to the severance agreement was in fact made before the severance agreement was arrived at and signed and its all claims provision clearly states such to be in the context of severally enumerated Acts and "all or any employment legislation" [Emphasis added]

The Tribunal found that the Complainant must have been aware that she had a discrimination complaint from the time of the interview at the petrol station whereas the Respondent would not have known of this complaint until it was filed, several months after the conclusion of the voluntary redundancy agreement. The Complainant, therefore, had the opportunity to weigh the possibility of success of making such a complaint against her acceptance of the terms of the agreement. The Tribunal noted that the Complainant had three days to consider her options or to request legal advice (a right which she was advised of in the terms of the voluntary redundancy agreement). The Complainant did not allege that she was pressurised by the Respondent in relation to accepting the terms of the agreement in any way.

The Tribunal noted that the alleged reference to the Complainant’s disability in her interview was disputed and, as such, the settlement sum was not paid in consideration for something that the Respondent would have taken responsibility for.

Ultimately, the Tribunal found that the terms of the voluntary redundancy agreement meant that it did not have jurisdiction to investigate.

 CONCLUSION

Although employers frequently use these types of agreements to protect themselves against future claims, they are not always deemed to be enforceable by the courts/tribunals. Many factors are taken into consideration when deciding whether such an agreement is enforceable, including whether it is based on free and informed consent, whether it lists the various statutes being taken into account and whether the employer has advised the worker in writing to obtain independent legal advice. Also, any such agreement to waive employment rights must be supported by adequate consideration.