1. Claim
1.1. The case concerns a claim by Ms Margaret Byrne that the Association of Irish Racecourses, directly discriminated against her on the grounds of gender contrary to Sections 6(2)(a) of the Employment Equality Acts 1998 to 2004, in being discriminated in access to employment pursuant to S. 8(1)(a) or alternatively, having been discriminatorily dismissed pursuant to S. 8(6) of the Acts.
2. Background
2.1. The complainant submits that she was casually employed by the respondent as a security system operator on various racecourses around the country. She submits that when another casual employee, who was male, was taken on by the respondent, she was not provided with casual work any longer from March 2005. She submits this amounts to discrimination in access to employment, or alternatively, discriminatory dismissal, on grounds of gender. The complainant submits she was the only woman on the panel the respondent operated to allocate this type of work.
2.2. The respondent disputes that the complainant is an employee, and therefore that the Tribunal has no jurisdiction in this matter.
2.3. The complainant referred a complaint under the Employment Equality Acts 1998 to 2004 to the Director of the Equality Tribunal on 14 March 2006. On 21 June 2007, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. A submission was received from the complainant on 29 March 2007. A submission was received from the respondent on 5 July 2007. A joint hearing of the claim was held on 5 October 2007. Additional submissions were requested from the parties on a matter that arose at the hearing, and were received from the complainant on 19 October 2007, and from the respondent on 9 November 2007.
3. Summary of the Complainant’s Written Submission
3.1. The complainant submits that from 2003 until March 2005, she was employed by the respondent as part of a panel of persons who operated the security system on the premises of the various racecourses of the respondent.
3.2. She submits that the panel consisted of Mr C., who was a full-time employee of the respondent’s, her husband, Mr O’B and herself. When Mr C. was unable to attend a race meeting to operate the security system, he would delegate work first to her husband, in case of her husband being unavailable, to Mr O’B., and finally, to herself.
3.3. Towards the end of 2004, Mr C. had to undergo a by-pass operation and was on sick leave for several months. The complainant’s husband was left in charge of the security equipment and the rostering of personnel, with the consent of the respondent’s CEO. The complainant submits that Mr O’B refused to work a four-day race meeting in Limerick, and that she was required to go there instead. The complainant submits that Mr O’B refused to do further work for the respondent after this, and that the complainant was in second place on the panel after her husband, until Mr C.s return from sick leave.
3.4. She submits that after Mr C.s return from sick leave, he asked his son to work the security system at one particular race meeting. She further submits that from October 2005, the respondent took on one Mr McD, who was subsequently assigned not just work that the complainant used to do, but also work previously done by her husband.
3.5. The complainant submits that the respondent should have consulted with all staff on the panel over the new work allocation patterns that arose when Mr McD commenced working for the respondent, which replaced the previous system of de facto allocating work on the basis of seniority.
3.6. The complainant submits that in January 2006 she wrote to the respondent’s CEO requesting reasons for not being allocated work. She submitted copies of the correspondence in evidence.
3.7. The complainant submits that she has not received work from the respondent since March 2005 and that since she was the only woman on the panel, that this constitutes discrimination on the ground of gender.
4. Summary of the Respondent’s Written Submission
4.1. The respondent submits that the complaint is misconceived in law; that the complainant has not been an employee of the respondent, has not been unfairly dismissed, and that the respondent has not discriminated against her.
4.2. The respondent provides and operates the access security system at all racecourses in Ireland. This is a computerised system that allows free access to categories of individuals such as racehorse owners, trainers, jockeys and administration staff. A credit card sized access card is scanned into a computer by the turnstile operative and the computer confirms whether the card is valid on the day.
4.3. The respondent employs Mr C. on a full-time basis to operate this security system. There are about 100 to 120 race meetings per year that Mr C. is unable to attend himself. For these race meetings, the respondent has made arrangements with a small number of individuals to work the security system.
4.4. The respondent submits that where one of these individuals also carried out work for the Turf Club, their daily fee for turnstile operative services rendered to the respondent would be administered by the Turf Club, which would invoice the respondent in respect of days when such individuals were carrying out duties for the respondent.
4.5. The respondent submits that Mr C. attended as many meetings as possible, and would call on the complainant’s husband if there was a second race fixture for the day. On St. Stephen’s Day and the May Bank Holiday, there are traditionally three race meetings, and it would be necessary to seek the assistance of a third person to operate the security system.
4.6. The respondent submits that there has never been any commitment given to individuals in relation to any number of days’ work allocated to them in any given period, nor any commitment sought from them as to their availability for such dates.
4.7. The respondent submits that the complainant worked for them on one day (9 November) in 2003, on 11 days in 2004, owing to Mr C.s sick leave, and on 2 days in 2005. The respondent further submits that Mr C. was only aware of 4 days of assistance given by the complainant in 2004. The respondent submits that the other seven days of work were allocated to her when her husband was doing the rostering, and that records for this work for only came to the knowledge of Mr C and the CEO in preparation of the submission for the Tribunal.
4.8. The respondent submits that in 2005, it was decided to appoint another person to assist in access control at race meetings, both due to the fact that race fixtures had increased over the years, and because it was felt that excessive reliance had been placed on Mr C. as full-time employee. The respondent submits that the appointee, Mr McD, was positively recommended to Mr C., that his flexible part-time working arrangements as a nurse made him available on a regular basis, and that his location in Carlow would help the respondent economise on mileage and expenses payments.
4.9. The respondent submits that there is no significant reduction in work allocated to the complainant, and that the high number of days she worked in 2004 were related to Mr C.s illness.
4.10. The respondent disputes that the complainant was ever an employee, that a contract of employment existed between the parties, and that therefore she was never dismissed, whether unfairly or otherwise. The respondent submits that in the present case, there exists a lack of mutuality of obligation – of the respondent to offer work for the complainant, and for the complainant to perform it when so offered. The respondent therefore submits that the Tribunal has no jurisdiction in this claim.
5. Conclusions of the Equality Officer
Jurisdiction
5.1. Two different issues of jurisdiction arose during the investigation of this claim: The issue of whether the complainant was employed by the respondent for the purposes of the Acts, which the respondent challenges as per their written submission. The second issue arose during the hearing of the complaint. In oral evidence, the complainant stated that she had not received work by the respondent since March 2005, and furthermore, not since the filing of the complaint in March 2006. The hearing took place in October 2007. I said to the parties that victimisation might have possibly occurred and invited additional written submissions on the matter from both parties. I will deal with both matters in turn, before turning to the substantive complaint.
The Complainant’s Employment Status
5.2. The first issue I have to consider is whether the Tribunal has jurisdiction to investigate and decide on the complainant’s case. The question is whether there existed between the respondent and the complainant an employer/employee relationship, and therefore, whether she was an employee for the purposes of the Acts. S. 2(1) of the Acts defines “contract of employment” as (a) a contract of service or apprenticeship, or (b) any other contract whereby – (i) an individual agrees with another person personally to execute any work or service for that person […] whether the contract is express or implied and, if express, whether oral or written.”
5.3. The main test, under Irish law, for assessing this in work situations such as the complainant found herself was set out by Keane J in Henry Denny & Sons (Ireland) Ltd v. The Minister for Social Welfare [1998 1 IR 34]. The Supreme Court held that it was appropriate not only to examine the entire contractual agreement between the parties, but also the particular conditions under which work was performed. Keane J stated: “[…] in general a person will be regarded as providing his or her services under a contract of service and not as an independent contractor where he or she is performing those services for another person and not for himself or herself. The degree of control exercised over how the work is to be performed, although a factor to be taken into account, is not decisive. The inference that the person is engaged in business on his or her own account can be more readily drawn where he or she provides the necessary premises or equipment or some other form of investment, where he or she employs others to assist in the business and where the profit he or she derives from the business is dependent on the efficiency with which it is conducted by him or her.”
5.4. Murphy J added: “Whether Ms M. was retained under a contract of service depends essentially on the totality of the contractual relationship express or implied between her and the appellant and not upon any statement as to the consequences of the bargain.”
5.5. In oral evidence, the complainant stated that she was paid through the Turf Club, for whom she first started working in 2003. The Turf Club requested her PPS number, and issued her with an employee code number. The wage claim slip in regard to her work for the respondent would state the date and place of the race meeting where she worked for the respondent. She stated that the respondent owned the equipment she would use for her work, and that she would not be permitted to outsource her work for the respondent without the respondent’s knowledge. She was expected to operate the equipment as instructed and had no input or variation in how to perform the task. Whoever was asked to do the work was expected to arrive at the racecourse 2 ½ hours before the first race and stay until the fifth race, by which time anyone who had reason to be in the security-system controlled zone would be there.
5.6. The complainant stated that it was open to her to reject an offer of work, but that when she accepted it, she would be expected to perform the work in the prescribed manner. She stated that she was not expected to keep herself available to work for the respondent, and was not “on call” in any way. She stated that on the racecourses, whoever brought the security equipment to the racecourse on the day, was seen as being authorised by the respondent to perform the security checking.
5.7. I find that on the days when the complainant has worked for the respondent, she is clearly covered by the jurisprudence in Denny. The way she was expected to perform her tasks does not correspond with the approach of someone who is in business on her own account, and she was not in a position to vary her earnings by varying the work, or doing it more speedily. The respondent defined exactly what work she was expected to perform, and how, and owned the equipment that she was to use, which the respondent supplied. The respondent’s control over the equipment was such an important matter that third parties recognised it as a prima facie sign that the complainant was authorised by the respondent to perform work for them. I am therefore satisfied that the contractual relationship between the parties was one of a contract of service, and not a contract for services.
the Respondent has been conscious of the need to strike a balance (in allocating days to individuals) between allocating sufficient days to keep interest and performance levels up and ensuring that it is possible to address unforeseen emergencies in relation to availability. [emphasis added]
5.9. The respondent also denies that the complainant’s employ has been terminated, and the respondent’s CEO confirmed to me in oral evidence that if a casual employee’s employ was terminated, they would be so notified.
5.10. Therefore, while mutuality of obligation between the parties might not have been very strong, and while this can be interpreted as being a reflection on the low level of casual employment offered in the employment relationship, it was not non-existent. It included an implied obligation on either side to expressly notify the other of the end of the relationship, as appropriate, and an acknowledgement by the respondent to provide a reasonable amount of work to make it worth the while of those persons working for the respondent on this casual basis, to make themselves available for this work. Also, mutuality of obligation clearly existed in respect of each specific day on which the complainant worked for the respondent: She undertook to carry out her work as specified at a place and time also specified by the respondent, and the respondent undertook to make the necessary equipment available to her and to pay her an agreed, fixed sum and her travel expenses.
5.11. Furthermore, I note that S. 11(4) of the Protection of Employees (Part-Time Work) Act of 2001 defines a casual employee as someone who, at a particular time
has been in the continuous service of the employer for a period of less than 13 weeks, and
that period of service and any previous period of service by him or her with the employer are not of such a nature as could reasonably be regarded as regular or seasonal employment [...]
which I find helpful guidance, in addition to case law, in determining whether a worker is a casual employee under Irish law. I note in particular that the statute does not set a minimum level of employment below which an employee cannot be regarded a casual employee.
5.12. I would also like to note that following the Tribunal’s decision in Theresa Nevin v. The Plaza Hotel [DEC-E2001-033], that one single day of employment is sufficient for a worker to enjoy the protection of the Employment Equality Acts.
5.13. Finally, since the respondent set some store in the argument that the complainant was paid through the Turf Club and not directly by the respondent, I note the finding of the Labour Court in Diageo Global Supply v. Mary Rooney, [PTW/03/7], that the making of payments to a part-time employee through a third party does not relieve an employer of their statutory obligations towards a temporary or casual employee. The respondent in that case had worked as a part-time nurse in the appellant’s medical department, and was paid through an employment agency. The court examined the respondent’s situation in some detail and found that a contract of service existed between her and the appellant. It went on to find in particular, that the actions complained of under the Protection of Employees (Part-Time Work) Act, 2001, namely, the reduction of hours and the changing of the pattern of attendance of the respondent, was entirely within the control of the appellant rather than the employment agency. It therefore held that for the purpose of enforcing her rights under the Act, the respondent was an employee of the appellant.
5.14. Likewise, I find that the Turf Club had no control over, or input in, the actions that constitute the dispute before me, and that the respondent did not attempt to argue such. The Turf Club must therefore be regarded only as a payment agent of the respondent.
5.15. Based on all of the foregoing, I am satisfied that the respondent is the complainant’s employer and that the complainant is a casual employee of the respondent, that despite her infrequent work for the respondent she is covered by the Acts, and that I therefore have jurisdiction to investigate her complaint.
The Tribunal’s Jurisdiction to Investigate Victimisation
5.16. At the hearing of the complaint, the complainant submitted in oral evidence that she had not received an offer of work from the respondent since March 2005. I then advised the parties that it seemed possible to me that victimisation of the complainant might have arisen, and requested that each party make a written submission to me on this matter. I requested the complainant to make a written submission within two weeks of the hearing, which would be copied on receipt to the respondent who would have two weeks to respond. While the legal representatives present initially acceded to this request (and did indeed subsequently submit their positions on the matter), the respondent strongly challenged the Tribunal’s jurisdiction to direct them in this manner. For the avoidance of doubt, I therefore wish to set out the relevant case law on which I based my decision my decision to investigate the possibility that the complainant may have been victimised.
5.17. The Tribunal’s jurisdiction in this case is based on the Judicial Review outcome of the case Siobhan Long v. Powers Supermarkets Ltd t/a Quinnsworth Labour Court decision DEE901. In the case as it was decided before the Labour Court, the Court concurred with the finding of the Equality Officer under the Employment Equality Act 1977, that she had no jurisdiction to consider the case under Section 2(c) of the Act, which covered indirect discrimination. The complainant, who was represented, had brought her claim under direct discrimination and had not argued indirect discrimination. The Court stated that it “had regard to the very specific terms under which the appellant and her representative brought her case.”
5.18. This finding was subsequently overturned in the High Court on judicial review. Johnson J, as he then was, declared the decision to be null and void, and remitted the matter back to the Equality Officer, directing that she issue a recommendation pursuant to the provisions of S. 19 of the Employment Equality Act, 1977 [Siobhan Long v. The Labour Court, Mairead Blackhall, and Powers Supermarkets Ltd t/a Quinnsworth, 1990 No 58 Judicial Review , 25 May 1990]. I find that Johnson J’s jurisprudence established the right of an Equality Officer to consider cases before him or her under provisions of the relevant legislation that the complainant or the complainant’s representative have not sought to invoke, if it appears from the evidence that those provisions should be applied to the case at hand.
5.19. In giving the parties two weeks each to make additional written submissions to the Tribunal on the possible victimisation of the complainant, I had regard to The State (Irish Pharmaceutical Union) v. Employment Appeals Tribunal [1987 ILRM 36], in which the Supreme Court held that where a quasi-judicial body introduces any element into a case that has not been previously canvassed, parties must be afforded an opportunity to meet the case.
The Substantive Complaint
5.20. I now turn to the substantive issue of the case, i.e. whether the complainant’s gender is the reason that the respondent ceased to offer her work, given the fact that she is the only woman on the respondent’s panel of casual workers. Pursuant to S. 85(A) of the Acts, the onus is on the complainant to raise a prima facie case in this matter, that is, establish facts from which it may be reasonably inferred that discrimination based on her gender could have taken place. The burden of proof then shifts to the respondent in rebutting this evidence.
5.21. I note the respondent’s position that the complainant’s level of casual employment with the respondent has always been very low, with the exception of the lengthy sick absence of their full-time employee, Mr C., and typically did not amount to more than one to two days per year.
5.22. From the respondent’s oral evidence, I gained the general impression that the rostering of the casual employees on the panel is done in a very unstructured, ad hoc, manner. The CEO was not aware of how the rostering was done, as he stated it was the responsibility of Mr C. He also stated that prior to hiring Mr McD, the only general rostering pattern would be that the complainant’s husband would attend race meetings that Mr C. was unable to attend, and any other work allocation to persons on the panel would be done without regard to pre-arranged patterns. Mr W. specifically spoke of “no hard and fast patterns”. Mr C., at least for the period of his sick leave, was not aware how the complainant’s husband was rostering the panel members, and apparently left no instruction on any kind of rostering system. Close family members of the panel members were pulled in at short notice, if necessary.
5.23. Counsel for the complainant used the term “arbitrary” to describe the work allocation practices of the respondent, and I agree with this description. However, it is not evident from the facts put before the Tribunal, that up to the lodging of her complaint, the complainant was subjected to significantly greater arbitrariness in this matter than the other panel members, on account of her gender or otherwise. Under normal circumstances, the complainant worked between one and two days per year for the respondent. Therefore I find that the fact that she had not worked for the respondent for one year by the time she lodged her complaint with the Tribunal in March 2006 is not strong enough to raise an inference that she had not been given work, up to that date, because she was the only woman on the panel. Also, the complainant herself adduced evidence that her husband’s work for the respondent was reduced when Mr McD was appointed, which further weakens her case that her gender was the reason for the reduction in her work offers.
5.24. Turning then to the complainant’s allegation of discriminatory dismissal, I note that the respondent’s CEO, Mr W., confirmed in oral evidence that the complainant’s employment had not been terminated, and that she was still considered to be a part of their panel of casual workers. This statement is consistent with written assurances of Mr W. to the complainant. I further note that Mr W., in cross-examination by counsel for the complainant, made a hypothetical statement that unreliable persons would not be offered work by the respondent, except if the respondent was “badly stuck”. At no time did the respondent seek to allege that the complainant was unreliable in carrying out work she had undertaken for the respondent. The complainant did not seek to adduce evidence that her employ with the respondent had been terminated in an express communication from Mr W. In light of all of this, I will accept the respondent’s statement as true that the complainant’s employ was not terminated, and the complainant’s specific complaint of discriminatory dismissal therefore falls.
5.25. I now turn to the matter of the complainant’s potential victimisation, which arose from her oral evidence that she has not been offered work by the respondent after March 2006, when she lodged her complaint with the Tribunal.
5.26. S. 74(2) of the Acts defines victimisation as occurring where
dismissal or other adverse treatment of an employee occurs as a reaction to –
(a) a complaint of discrimination made by the employee to the employers,
(b) any proceedings by a complainant
[...]
5.27. The complainant’s representative, in his additional written submission, formally extended the complainant’s case to include victimisation, and repeated to the Tribunal that the complainant had not been offered work by the respondent since lodging her complaint with the Tribunal.
5.28. The respondent’s representative, in her additional written submission, denies that the complainant was an employee of the respondent. It is further stated that the respondent had no knowledge of the complainant’s objections to the manner in which work was distributed, and hence there was nothing to which the respondent could react. The respondent’s additional written submission does not offer any explanation as to why no offer of work was made to the complainant for 18 months after she made her complaint, in addition to the twelve months that had elapsed before in which she was not offered work.
5.29. In a case like this one, where casual employment at an extremely low level is at issue, it will be difficult to determine which level of not offering the casual worker work raises an inference of adverse treatment. However, I find that the fact that the complainant was not offered any work by the respondent for 30 months, after she had previously worked between one and two days in any twelve month period, does raise an inference of adverse treatment. This is particularly so in the light of the respondent’s statement, in its written submission, that “the Respondent has been conscious of the need to strike a balance (in allocating days to individuals) between allocating sufficient days to keep interest and performance levels up and ensuring that it is possible to address unforeseen emergencies in relation to availability.” (see para 5.8 above, emphasis added).
5.30. The respondent submitted copies of correspondence between the complainant and the organisation which make it clear that the CEO did know that the complainant had issues with the way work was allocated, and that she had concerns her employ was terminated. The CEO denied this, and indeed has consistently insisted that the complainant is still a casual employee of the organisation. Still, the respondent’s policy to allocate work to persons on its panel of casual employees has not been applied to the complainant for a period of time that is significantly longer than her previous periods between days of work for the respondent.
5.31. Furthermore, the respondent clarified in oral evidence at the main hearing of the complaint that there were two periods during the year when three race meetings took place around the country, the May Bank Holiday weekend, and the period right after Christmas, which were the times when the complainant had previously been offered work. The respondent also stated that the number of race fixtures had increased in recent years. Finally, the respondent’s employee, Mr C., stated in evidence that situations in which the respondent was short of staff to operate the security system continued to arise, despite Mr McD.’s appointment to the panel. Mr C. stated in oral evidence that situations had since arisen in which the respondent was short of persons who could operate the security system. Mr C. cited an incident two weeks prior to the hearing of the complaint, where he sent his wife on the 5:30 am train to Listowel, with the security equipment, due to a car breakdown. Mr C. said that in those specific circumstances, he had not wanted to ring any other person on the panel due to the unsocial hour involved, which I accept. But Mr C’s statement confirms that situations similar to those where the complainant used to work for the respondent in the past continue to arise in the respondent organisation, despite the appointment of Mr McD. However, the complainant is not called to provide services, although she
· continues to be an employee of the respondent’s,
· continues to be available to provide services, and
· despite the fact that the respondent asserted repeatedly, in letters to the complainant, in its submission to the Tribunal and in oral evidence, that the complainant was regarded as the panel member to be called when the respondent was unable to source another casual employee to attend the meeting and
· despite the fact that the respondent operates a general policy to allocate work to its casual employees in order to keep their interest in working for the respondent.
5.32. In the absence of any alternative explanation in this matter on behalf of the respondent, I find it reasonable to conclude that the reason the complainant was not offered any work after lodging a complaint with the Tribunal was because the respondent reacted adversely to her instigation of proceedings.
6. Decision
6.1. In the light of all of the foregoing, I find that:
(i) The complainant did not establish a prima facie case that the respondent discriminated against her in the allocation of casual work, or dismissed her, on ground of her gender and that therefore her complaints of discrimination and discriminatory dismissal fail.
(ii) The respondent nevertheless victimised the complainant by not offering her any work in accordance with her previous work patterns, or otherwise, after she lodged a complaint of discrimination with the Tribunal, pursuant to S. 74(2)(b) of the Acts.
6.2. I therefore order that the respondent pay the complainant € 500.—for the effects of the victimisation. This award is not in respect of lost pay, and is therefore not subject to tax. The small size of the award is determined by the low income the complaint derives in an average year from her low level of casual work for the respondent, pursuant to S. 84(2) of the Acts.
__________________
Stephen Bonnlander
Equality Officer
21 February 2008