Equality Officer’s Decision No: DEC-E/2009/008
Parties
Biryukov
And
Leoville Ltd. t/a Kilkea Castle Hotel & Golf Club
(Represented by McKenna Durcan - Solicitors
File No: EE/2005/398
Date of issue 11 February, 2009
TABLE OF CONTENTS
SECTION PAGE
Dispute 2
Background 2
Summary of Respondent’s Case 3
Summary of Complainants’ Case 4
Conclusions of the Equality Officer 4
Decision 6
1. DISPUTE
This dispute involves a claim by Mr Edward Biryukov, who is a Russian national, that he performs “like work” in terms of sections 7 of the Employment Equality Acts, 1998 and 2004 with two named comparators and he is therefore entitled to the same rate of remuneration as paid by the respondent to those comparators in accordance with section 29 of those Acts.
2. BACKGROUND
2.1 The complainant was employed by the respondent as a general operative, as part of a maintenance team, between March, 2002 and November, 2005. His tasks included internal maintenance and remedial work as well as maintenance of the gardens and grounds during the period March-September and other ancillary jobs. The comparators formed part of the same maintenance team but it is contended that they performed the duties of “Maintenance Team Supervisor”. The complainant referred a complaint to the Equality Tribunal on 7 December, 2005 contending that he performed “like work” with the named comparators in terms of all three paragraphs of section 7(1) of the Employment Equality Acts, 1998 and 2004 and consequently he was entitled to the same rate of remuneration as that paid to the named comparators in accordance with section 29 of the Acts. The complaint was referred on the ground of race in terms of section 6(2) of the Acts. In accordance with her powers under the Acts the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Act on 17 October, 2007. My investigation of the complaint commenced on that date.
2.2 A Preliminary Hearing took place on 30 November, 2007 at which the respondent disputed the existence of “like work” between the complainant and the named comparators. Notwithstanding this argument it submitted that the rates of remuneration paid to the complainant and the named comparators are lawful in accordance with section 29(5) of the Acts. Accordingly, the Equality Officer decided to investigate this question as a preliminary matter in accordance with section 79(3) of the Acts. A Final Hearing on the complaint was held on 19 August, 2008. A number of issues arose at the Hearing which required further clarification and gave rise to correspondence between the Equality Officer and the parties until late November, 2008.
3. SUMMARY OF RESPONDENT’S CASE
3.1 The respondent accepts that there was a difference in the rates of remuneration paid to the complainant and comparators. It states that at the date of referral of the complaint, Comparator A (who was the original Maintenance Team Supervisor) was paid €11.39 per hour, Comparator B (who subsequently replaced Comparator A as Maintenance Team Supervisor) was paid €11.25 per hour and the complainant was paid €8.07 per hour plus board (which it submits has a value of €54.13 per week as per the JLC for the Hotel industry). It states that Comparator A was an employee of the respondent and the previous owners of the Hotel for nearly forty years and his rate of remuneration reflected this service and experience, as well as the fact that he was the Maintenance Team Manager. The respondent states that Comparator B commenced work with it as a part-time barman in late 1995. It adds that he was appointed Bar Manager in October, 1997 (following interview) and was paid €8.46 per hour in this new position. The respondent states that in early 2002 Comparator A expressed an interest to retire or alternatively, if he was to continue working, to do so only 2-3 days per week. It adds that at this time the bar activity was decreasing significantly and it approached Comparator B (who it was aware had previous building experience) and also had management experience with the respondent, with a view to redeploying to the maintenance team as support to Comparator A. It states that Comparator B transferred over to the position of Assistant Maintenance Team Supervisor at that time at the same hourly rate of pay he received as Bar Manager €8.46 – and some weeks later this hourly rate was increase to €11.26 per hour following negotiations between him and the General Manager at that time. The respondent states that this increase was to reflect the increased responsibility of his new role, the fact that he had ten years’ service with the respondent and had not received any wage increase for a number of years and the further fact that Comparator A continued to reduce his working hours.
3.2 The respondent submits that the nationality of the complainant had nothing to do with the rate of remuneration he was paid. It states that two other members of the maintenance team – both of who were Irish – and performed tasks similar to the complainant, were paid a lower hourly rate than he was. In addition, it states that nationality is not a factor which is considered in relation to waiting staff and it submitted pay details of three such staff, one of whom is Irish and the others from Eastern European countries. The respondent submits therefore it has demonstrated that the differences in the rates of remuneration paid to the complainant and the named comparators were unconnected to their respective nationalities.
4. SUMMARY OF COMPLAINANTS’ CASE
The complainant (who is Russian) submits that he performs “like work” in terms all three paragraphs of section 7(1) of the Employment Equality Acts, 1998 and 2004 with two named comparators (who are Irish) and he is therefore entitled to the same rate of remuneration as that paid to those comparators in accordance with section 29 of the Acts. The complainant rejects the assertion that he was engaged as a general operative by the respondent. He contends that he is a qualified tiler/plasterer, although he accepts that his duties were not restricted to those types of tasks and he performed painting duties as well as duties in the gardens and other ancillary duties such as driving. He accepts that Comparator A was his Supervisor but rejects the assertion that Comparator B performed this function – suggesting that he was not adequately qualified to discharge that role. The complainant further argues that his rate of remuneration was considerably lower than the rates paid to maintenance personnel at a number of hotels in the Dublin area and submits that this supports his complaint of discrimination in terms of his remuneration.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the rates of remuneration paid by the respondent to the complainant and the named comparators are lawful in accordance with section 29(5) of the Employment Equality Acts, 1998 and 2004. For the purposes of my Decision I am making an assumption that the complainant and the named comparators performed “like work” in terms of section 7 of the Acts without making a finding on that issue. Such a decision is a matter for another day should I find against the respondent on the current issue and thereafter conducting a work inspection. I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence furnished by the witnesses at the Final Hearing. As the respondent is seeking to rely on the defence available at section 29(5) of the Acts the burden rests with it to prove, on balance of probabilities, that the rates of remuneration paid to the complainant and comparators were not influenced, in any way whatsoever, by the nationality of the parties involved (i.e. the discriminatory ground of race).
5.2 I shall consider the arguments advanced by the respondent in respect of Comparator A first. This comparator attended the Final Hearing and gave evidence to the Tribunal. He confirmed (i) his rate of remuneration as set out at paragraph 3.1 above, (ii) that he held the position of Maintenance Team Supervisor and (iii) that he commenced employment with the respondent (through its predecessor) in 1966. He further confirmed that any increase in his rate of remuneration over those years was secured following personal negotiations with the respondent’s General Manager, although he was unable to confirm when he last received a pay increase. Having evaluated all the evidence submitted by the parties as regards this comparator, I am satisfied that his rate of remuneration is commensurate with his length of service and experience. I therefore find the respondent has demonstrated that the rate of remuneration paid to Comparator A was unconnected with the nationality of the complainant and comparator i.e. that there are grounds other than race for the difference in the rates of pay - and consequently the rates of remuneration are lawful in accordance with section 29(5) of the Acts[1].
5.3 I shall now examine the arguments advanced in respect of Comparator B. This comparator also attended the Final Hearing and gave evidence. He confirmed that he was Bar Manager with the respondent between October 1997 and March, 2002. He stated that his hourly rate of remuneration from the commencement of this role was €8.46 and that he received no increase on this rate during his tenure as Bar Manager – this was confirmed by payslips furnished to the Tribunal. The respondent submitted that the bar trade was diminishing at such a rate that it decided to close that area and offered Comparator B the opportunity to relocate to the Maintenance Team. This was confirmed by Comparator B. Evidence was given by Comparator A that he had approached the respondent in early 2002 with a view to retiring, or at the very least reducing his working hours, due to his advancing years. The respondent decided to offer Comparator B the opportunity to relocate because it was of the view that he had relevant building experience from a previous employment and he had suitable management experience from his time as Bar Manager with the respondent. I note that the complainant takes issue with the comparator’s suitability for this role, yet he never submitted it was discriminatory. I therefore do not intend to elaborate on that point. I am satisfied, on balance, that Comparator B’s transfer to the Maintenance Team was something beyond his control – the alternative was to face unemployment – and in deciding to accept the offer to transfer it was appropriate that he retained his then current rate of pay on that transfer. I note that this was slightly in excess of the rate paid to the complainant, who had commenced employment with the respondent around that time (March, 2002) and that the comparator had been on that rate of pay for some time in his role as Bar Manager.
5.4 Evidence was given at the Hearing by the respondent’s General Manager that the transfer of Comparator B to the Maintenance Team entailed his appointment to the role of Assistant Maintenance Team Supervisor and that he would eventually replace Comparator A in the not too distant future. This view was corroborated by both Comparator A and Comparator B at the Final Hearing. The respondent states that it was therefore entirely appropriate for it to entertain and indeed grant a pay increase to Comparator B shortly after he transferred to the post, particularly as Comparator A was on a higher rate of pay and Comparator B was his assistant. I have evaluated all of the evidence submitted by the parties on this issue and I am satisfied, on balance, that the rate of remuneration paid to Comparator B was not connected with, or influenced by, the fact that the comparator was Irish. I am satisfied that it was intended to reflect his new role and responsibilities (which ultimately was to replace Comparator A and at the date of Hearing this had occurred) and also recognised that he had not received any pay increase for a number of years previously (payslips were submitted to the Tribunal detailing Comparator B’s rate of remuneration during his time as Bar Manager). I note that the process of pay determination in the respondent organisation involved individual personal negotiation with the General Manager (see paragraph 5.2 above). This is the process which was followed by Comparator B in this instance. I further note that the respondent paid lower hourly rates of remuneration to two Irish General Operatives who performed similar duties to the complainant (payslips were provided for these employees and the complainant agreed that in general they performed similar type duties) and that differences in remuneration was also evident in waiting staff (payslips were submitted showing Irish waiting staff receiving higher and lower rates of remuneration to Eastern European colleagues). Consequently, having evaluated all of the evidence submitted to the Tribunal I find, on balance, that the rate of remuneration paid to Comparator B is lawful in accordance with section 29(5) of the Acts.
6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I find that the rates of remuneration paid to the complainant and the two named comparators are lawful in terms of section 29(5) of the Acts.
_______________________________________
Vivian Jackson
Equality Officer
11 February, 2009