Mr S & Ms P
V
A Company, Wicklow
(Represented by Barra Faughnan BL, on the instructions of Actons Solicitors)
1. DISPUTE
1.1 This dispute concerns a claim by two complainants that they were discriminated against by their employer on the ground of race contrary to the provisions of the Employment Equality Acts 1998 - 2004 when they were unfairly selected for unpaid layoff, at times when Irish employees continued to be paid. As certain unproven allegations of unlawful behaviour were made by both parties to these complaints, the decision has been anonymised.
1.2 The complainants referred claims to the Director of Equality Investigations on 1 October 2003 under the Employment Equality Act 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 23 June 2004 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were sought from both parties, with considerable delay being caused by the fact that the respondent had ceased to trade during April 2004. A joint hearing was ultimately held on 25 November 2005.
2. SUMMARY OF THE COMPLAINANTS' CASE
2.1 The complainants, Mr S and Ms P, are both natives of the Czech Republic. They have married since the referral of their claims, and Ms P is now using her married name, but in the interest of clarity she is referred to by her maiden name throughout this decision.
2.2 Mr S, a skilled spray painter, started work with the respondent company in July 2002. Ms P started work as a general operative with the respondent in April 2003. The complainants say that, in May 2003, the Managing Director said that there would be no work for three weeks because of difficulties the company was facing. The complainants say they were laid off, without pay, for that period, while some Irish staff members continued to work.
2.3 Mr S says that he spoke with the Managing Director on 3 June, when work resumed, and asked him about the future of the company and renewal of his work permit, which was due to expire on 26 September. Mr S says the Managing Director assured him that the future of the company was safe, and they agreed the Managing Director would give Mr S his decision about renewal of the work permit no later than 1 July. According to Ms P, her future was not discussed with her.
2.4 The complainants say that another lay off was announced at a staff meeting on 1 July. Again, they claim that Irish staff members continued to work during the lay-off period. The complainants claim that they attended the company premises at the end of July, when Mr S says the Managing Director agreed to renew his work permit. Ms P claims that, again, no one discussed her future with her.
2.5 Mr S claims that the Managing Director telephoned him on 26 August to say that he had changed his mind and would not renew the work permit. He says it was agreed that Mr S's employment would terminate on 26 September, following the expiry of the work permit. The complainants then left the country on 10 September to take scheduled holidays. They claim that when they returned to Ireland on 24 September, they each found letters dated 10 September at their residence. The letters enclosed the complainants P45s, each of which was dated 29 August.
2.6 It is the complainants' main contention that they were treated less favourably in relation to the lay offs than Irish colleagues. They also claim that the respondent acted unlawfully in relation to their work permits. Since they had been dismissed, their permits were no longer valid and they were illegal immigrants. The respondent, however, had not notified the immigration authorities of this, and the complainants were permitted to return from their holiday through the airport. The complainants claim that they subsequently had difficulties with the immigration authorities and had to return to the Czech Republic until its accession to the European Union on 1 May 2004.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent denies that discrimination had taken place. It says that the company suffered fluctuating fortunes during the course of the complainants' employment. It says that work seriously started to drop off during the period January to March 2003, and some employees were let go or were required to work shorter hours. In March 2003 all staff members were put on notice of temporary redundancy. As work came in ad hoc, decisions were made by the management team (Managing Director, Production Manager and Painting Supervisor) as to who to call in for additional work.
3.2 The respondent acknowledges that Mr S was a skilled painter and fitted in well with the painting team. It says, however, that his version of events in relation to the temporary lay-off is inaccurate. The respondent claims that all employees were told that during this timeframe they would be required to "muck in" and do other work such as unloading, preparation, inspection and general duties around the factory. It said Mr S made it clear that he was a painter of some experience and was unwilling to carry out other duties. Ms P was employed as a general operative in the pre-preparation area. The respondent says that people with more experience and/or more flexibility were called in to work during the lay-off period. The respondent says that the management team actually carried out most of the limited work available during this time, and claims that several non-Irish employees, skilled workers who were prepared to carry out other duties, were called in to work as necessary.
3.3 The respondent claims that the employment of Ms P and the acquisition of a work permit for her came about as a result of a specific request from Mr S. It says that it was as much a favour to Mr S to employ his girlfriend as it was for its own needs. The respondent denies that it stretched the rules in relation to work permits with regard to Ms P, but says even if it had done so it was out of a genuine desire to be of assistance and in the hope that the business would be there to justify the decision.
3.4 The respondent agrees that it had been prepared to renew Mr S's work permit, but decided this was not feasible given the lack of work available. It says that Mr S was asked to attend the factory to collect his passport (being temporarily held by the respondent to enable the work permit to be renewed) and other personal belongings. The respondent says that it was noticed that some equipment was missing from the premises following Mr S's departure. It says the Gardaí were contacted and, having obtained a search warrant, discovered the missing equipment at the apartment shared by the complainants. The respondent says that this was the basis for the decision to terminate the complainants' employment immediately, and their P45s were forwarded to them. The respondent says that a Garda investigation was continuing into the matter.
3.5 The respondent contends that these complaints were motivated by the criminal investigation arising out of the theft of equipment, and not because of any reasonable or honest apprehension that the complainants were treated less favourably on the ground of race. It asserts that the allegation that it had breached immigration rules was no more than an attempt to pressurise it into making an offer of compensation.
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
4.2 The complainants alleged that the respondent discriminated against them on the ground of race contrary to the provisions of the Employment Equality Acts 1998 - 2004. Section 6 of the Acts provides that discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated, on one of the discriminatory grounds, including race, colour, nationality or ethnic or national origins. Section 8 provides that
(1)In relation to-
(b) conditions of employment...
an employer shall not discriminate against an employee or prospective employee...
4.3 As stated, the major contention being made by the complainants was that they were treated less favourably than Irish employees during the lay-off period. It is clear that the respondent company was experiencing severe trading difficulties, as evidenced by the fact that it ceased trading approximately eight months after the termination of the complainants' employment. I am satisfied that the lay off was a necessary step for the respondent to take to attempt to secure its future. I am also satisfied that whatever limited work was available would most usefully be carried out by skilled employees who were willing to be flexible, and to assist in whatever way was necessary. Mr S agreed at the hearing that he was employed to carry out a skilled function, and he acknowledged that he might have said that he shouldn't have to do other tasks. There was no dispute that Ms P was a relatively unskilled general operative who would have been unqualified for painting and inspecting jobs. In the circumstances, I am satisfied that only skilled and flexible employees were asked to work during that period and I find it reasonable that the complainants were not requested to work. The respondent provided some clock card data to indicate non-Irish employees attended at the factory at various times during the lay off, and I am satisfied that the decision not to request the complainants to work had no connection with the race ground.
4.4 It should be noted that I have no jurisdiction to make findings in respect of alleged breaches of immigration law, nor in relation to alleged criminal activity. However, the alleged criminal activity is relevant in the sense that it is the respondent's explanation for its decision to terminate Mr S's employment immediately, instead of waiting for the work permit to expire some four weeks later as had been agreed. Ms P's work permit was valid until February 2004, but the respondent applied the same reasoning to terminating her employment, since she shared the apartment at which its missing equipment was discovered.
4.5 The prospective criminal investigation of this matter appeared to have ended inconclusively, apparently because the complainants were no longer within this jurisdiction for a period of time, the respondent company ceased trading and the Managing Director obtained new employment in another location.
4.6 Mr S was asked about the missing equipment at the hearing, and he indicated that he felt he had done nothing wrong. I noted however that he claimed he had not damaged that equipment and had in fact cleaned it up. While he said he didn't know what the fuss was about, it appears clear that the equipment was recovered from his apartment. I am satisfied that the decision to terminate the complainants' employment was not taken on the ground of race.
5. DECISION
5.1 Based on the foregoing, I find that the respondent did not discriminate against Mr S and Ms P contrary to the provisions of the Employment Equality Acts 1998 - 2004.
_____________________
Anne-Marie Lynch
Equality Officer
16 February 2006