THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC – E2009-048
PARTIES
Ms. Raimonda Jonylaite
(represented by Christina Ryan, BL instructed by
Richard Grogan & Associates, Solicitors.)
and
Tara Contracts Ltd., (in liquidation)
File Reference: EE/2007/620
Date of Issue: 16th June 2009
1 Claim
1.1 The case concerns a claim by Ms. Jonylaite, a Lithuanian national, that the respondent discriminated against her on the gender, family status, marital status grounds and the race ground based on her nationality in respect of her conditions of employment relating to access to employment, training, conditions of employment, and her dismissal. The claim also included allegations of harassment and sexual harassment.
2 Background
2.1 The complainant asserted that the respondent was an employment agency although it was allegedly revealed at another quasi-judicial forum that it was not a licensed employment agency in terms of the Employment Agency Act 1971. The respondent placed the complainant with Largo Foods in Ashbourne and she worked there from January 2007 until 9th June 2007.
2.2 Ms. Jonylaite referred this claim to the Director of the Equality Tribunal under the Employment Equality Acts 1998-2004 on 26th November 2007. The Director delegated the case to me, Bernadette Treanor, 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 in accordance with her powers under section 75 of the Acts. The date of delegation was 2nd March 2009 and I began my investigation on that date. As the complainant’s representative had indicated that the respondent was in liquidation I corresponded with the liquidators on behalf of the respondent. Both parties were informed of the assignment of the complaint to me and informed that a hearing of the claim would take place on 19th May 2009. The respondent did not attend nor was it represented at the hearing.
2.3 When the Hearing was opened the complainant was requested to clarify the claim before the Tribunal. Following some discussion the claims included on the complaint form relating to access to employment, harassment and sexual harassment were withdrawn.
3 Summary of the Complainant’s Case
3.1 A Mr. C, representing the respondent, met the complainant and others on her first day of employment at the Largo Foods premises in Asbourne. On this first day she was given a “Statement of main terms of Employment” which included references to an employee handbook which allegedly included details of disciplinary rules and procedures. What she was given the employee handbook relating to Largo Foods in both English and Russian. She signed the Russian version where it states in Russian “I fully understand and accept the conditions for Largo Foods.
3.2 The complainant indicated that she was paid by cheque every week and not provided with a payslip. She described how one of Largo Foods employees would distribute cheques by calling out the names of those they were for. None of the other agency workers were provided with payslips. As far as the complainant knew the agency workers comprised Lithuanians in the main and Latvians.
3.3 The complainant stated that she was informed by Largo Foods on a day to day basis whether she was required to work that day. Only where there was a lot of work was she told that she would be required for more than one day at a time.
3.4 When she was about six months pregnant the complainant told the respondent, Mr. C, she was pregnant and asked him to complete forms for her in relation to maternity benefit. When he returned the maternity benefit form to her he also enclosed her P45 and she received no further calls inviting her to work.
3.5 The complainant stated while she was given an Employee handbook by Largo Foods it was not in her native language. In addition she asserted that she should have had a handbook from her own employer, Tara Contracts. Finally it was asserted that if her Terms of Employment document issued by Tara Contracts referred to documents without explicitly indicating that they were documents relevant to another organisation it was reasonable to assume that Tara Contracts should provide these.
3.6 Following a reference to Section 8(2) the complainant’s representative suggested that a hypothetical Irish agency worker was the appropriate comparator.
3.7 Caselaw submitted in support of the complainant’s claim included Labour Court Recommendations Campbell Catering Ltd. V Aderonke Rasaq EED048, and Watters Garden World v Iurie Panuta EDA098 and Equality Tribunal decisions Khumalo v Cleary & Doyle Ltd. DEC-E2008-003, Ning Ning Zhang v Towner Trading DEC-E2008-001, 58 named Complainants v Good Concrete DEC-E2008-020 and Golovan v Porturlin Shellfish Ltd. DEC-E2008-032.
4 Summary of the Respondent’s case
4.1 The respondent was not represented at the hearing.
5 Conclusions of the Equality Officer
5.1 What must be decided is whether the complainant was less favourably treated in relation to her conditions of employment in terms of section 6(2)(a), (b), (c), and(h) and section 8(1) and (6) of the Employment Equality Acts, 1998 and 2007. It is alleged that she was discriminated against when she was not provided with payslips, not given documents in her own language, and in relation to her dismissal.
5.2 The burden of proof required from the complainant is detailed in section 85A of the Acts which provides that should a complainant establish facts from which it may be presumed that s/he suffered discrimination , it is for the respondent to prove the contrary. Detailed application of this approach may be found in Mitchell v Southern Health Board [2001] ELR201.
5.3 I am satisfied, based on the evidence presented to me, that the respondent was the complainant’s employer for the purposes of the complaint.
Conditions of Employment
5.4 In Ntoko v Citibank EED045 the Labour Court stated that the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach and which may only be in the respondent’s capacity of proof. In Campbell Catering and Aderonke Rasaq, EED048, the Labour Court applied the doctrine from Glasgow City Council v Zafar [1998] 2 All ER 953 which states that where there is a difference in treatment and a difference in race there is prima facie evidence of discrimination and it is for the respondent to provide a non-discriminatory explanation. The Labour Court in Campbell Catering went on to find that the respondent had treated the complainant differently, that is, less favourably when it did not afford her fair procedures in the investigation of the allegations against her in accordance with their practice. In other words, the Court clearly established a difference in treatment.
5.5 In the Ntoko case mentioned above, the Court also clearly established a difference in treatment as follows: “The complainant has established as a fact that he was treated differently than other employees of the respondent who made personal telephone calls and who are of a different racial origin”.
5.6 The complainant’s representative stated that the appropriate comparator is a hypothetical Irish or English-speaking agency worker. Based on Section 8(2) I am satisfied that the comparator must be an agency worker. It was asserted that a hypothetical Irish agency worker would be aware of his/her rights and entitlements. I accept that at least some Irish or English-speaking agency workers would be so aware. However, what the complainant requires me to conclude is that the employer has made a conscious decision to treat Irish agency workers differently, because they know their entitlements, and to treat agency workers of other nationalities less favourably. This is a very serious assertion. I am not prepared to make such a conclusion in this case without some form of supporting evidence. A mere assertion is insufficient.
Race (Nationality)
In the instant case the other agency employees working for the respondent on the same site were Lithuanian and Latvian and no reason has been adduced by the complainant as to why the Latvian workers were not suitable as comparators. If those of a different nationality are treated in the same manner as the complainant then the treatment cannot be based on nationality. The Latvian workers were also given cheques without payslips and they were also given the employee handbook in English and Russian. Further, in relation to the employee handbook, I am satisfied that the complainant was competent in communicating in Russian with the interpreter at the hearing and I am satisfied that she had the capacity to understand the Russian version of the handbook which she signed.[1] On the basis of the foregoing the complainant has failed to establish any less favourable treatment based on her nationality.
Family Status and Marital Status
No arguments were presented in relation to these grounds so they will not be considered further.
Gender
Not all of the agency workers were female. The documents presented include at least one male who received similar treatment. Therefore, in relation to her conditions of employment, the complainant has failed to establish any less favourable treatment based on her gender.
5.7 I find, on the balance of probabilities, that the complainant has failed to establish a prima facie case of discrimination in relation to her conditions of employment.
Dismissal
5.8 The complainant was issued with her P45 after she told Mr. C that she was pregnant and asked him to complete the maternity benefit claim form. While I am concerned about the complainant’s inability to say when she requested the form to be filled in and when she was issued with the two forms, I am satisfied that she was pregnant when she was dismissed. In Intrium Justitia v Kerrie McGarvey EDA095 the Labour Court stated :
“It is settled law that special protection against dismissal exists during pregnancy. Only the most exceptional circumstances not connected with the condition of pregnancy allow for any deviation from this. It is equally settled law that the dismissal of a pregnant woman (which can, obviously, only apply to women) raises a prima facie case of discrimination on the gender ground. Once such a case has been raised the burden of proof shifts and it is for the respondent employer to prove that discriminatory treatment on the stated grounds did not take place.”
5.9 In this case, therefore, the complainant has, by virtue of her dismissal during her pregnancy raised a prima facie case of discrimination on the gender ground. The respondent has not presented any rebuttal of this.
5.10 I find that the complainant has established a prima facie case of discrimination on the gender ground in relation to her dismissal.
6 Decision DEC-E2009-048
6.1 Having investigated the above complaint I hereby make the following decision in accordance with Section 79(6) of the Acts.
6.2 I find that the complainant has failed to establish a prima facie case of discrimination in relation to her conditions of employment and her case must therefore fail.
6.3 I find that the complainant has established a prima facie case of discrimination on the gender ground in relation to her dismissal. In accordance with Section 82 and as the complainant’s average gross weekly income was €74 over a period of 23 weeks I hereby order the respondent to pay her €4000 for the effects of the discrimination. The amount does not contain any element of remuneration and is therefore no subject to PRSI/PAYE.
Bernadette Treanor
Equality Officer
16th June 2009