EDA098

The complaint was investigated by an Equality Officer who found that the Complainant had been discriminated against as alleged. He further found that the Complainant had been victimised by the Respondent. The Complainant was awarded compensation in the amount of €10,000 for the effects of discrimination and €30,000 in respect of victimisation.

The Respondent appealed to this Court.

Position of the parties

Respondent.
At the commencement of the hearing the Court was told that the Respondent concedes that the Complainant suffered discrimination on the race ground as found by the Equality Officer. In these circumstances the appeal against that aspect of the Equality Officer’s decision was confined to the quantum of compensation awarded. The Respondent proceeded with its appeal against the substantive findings of the Equality Officer on the claim of victimisation and on the quantum of the award under that heading.

Evidence
Mr Paudi Kelly gave evidence on behalf of the Respondent. Mr Kelly is employed by the Respondent in a general management and supervisory capacity. He told the Court that the Complainant commenced employment with the Respondent in August 2003. He furnished a PPS number and it was assumed that he was entitled to work in the country. The witness did not ask the Complainant if he had a work permit. The witness also told the Court that he did not know the Complainant’s nationality. Mr Kelly said in evidence that in or about January 2006 a letter was received from Solicitors for the Complainant initiating a complaint under the Employment Equality Acts. As a result of this letter the witness became aware of the fact that the Complainant did not have a work permit. He said that he was surprised to learn that the Complainant’s affairs were not in order. The witness then contacted the Department of Enterprise Trade and Employment to enquire if a work permit could be issued to the Complainant. He was told that there was no possibility of a work permit being issued in respect of a labourer.

Mr Kelly told the Court that the phone call in question lasted a couple of minutes. The witness could not recall if he told the official to whom he spoke that the person in question was employed since 2003. He also told the Court that the Respondent employed five other non-EEA nationals as labourers at the material time. He did not inform the Department of Enterprise Trade and Employment of this.

The witness then informed Mr Watters, the Managing Director of the Respondent, that a work permit would not be issued for the Complainant.

In cross-examination the witness agreed that he had obtained work permits for five other non-EEA nationals employed by the Respondent. He said that he had no recollection of asking the Complainant for a copy of his passport. He accepted, however, that when the Garda� searched the Respondent’s premises a copy of the Complainant’s passport was found in a file.

Mr Michael Waters gave evidence. Mr Watters is Managing Director of the Respondent. Mr Watters told the Court that the Respondent now employs 11 employees including 5 family members. The Company is in the business of manufacturing and erecting garden sheds. The witness said that in 2005 or 2006 the Respondent had up to 21 employees. He told the Court that he had no involvement in applying for work permits. He said that Mr Kelly deals with such matters. The witness told the Court that he became aware of the Complainant’s immigration status when he received a letter from a firm of Solicitors initiating proceeding against the Respondent on the Complainant’s behalf. He said that he was surprised and disappointed to learn that the Complainant did not have a work permit.

On being told by Mr Kelly that the Department of Enterprise Trade and Employment would not issue a work permit for the Complainant Mr Watters decided to contact the immigration authorities to enquire if anything could be done to regularise the Complainant’s position. He called to the Drogheda Immigration Office (which is a Garda Station) and spoke to Garda Denis Fitzpatrick. The witness told the Court that he informed Garda Fitzpatrick of the Complainant’s circumstances and asked if his position could be regularised. Having checked the position Garda Fitzpatrick informed the witness that he did not believe that the Complainant could be given a residence stamp entitling him to remain in Ireland. Some days later Garda Fitzpatrick contacted Mr Watters and confirmed that the Complainant’s status could not be regularised.

Mr Watters told the Court that he contacted the Garda� because he was concerned that the Complainant would not be able to process a personal injuries claim which he had initiated against the Respondent. He said that he did not know if the Respondent’s insurance would cover the Complainant as he was working illegally. The witness accepted that he was informed of the Complainant’s intention to initiate an equality claim at the same time as he learned of his personal injuries claim. He told the Court that he did not understand what an equality claim involved.

The witness confirmed that he did not take legal advice nor did he consult his insurers before deciding to attend at the Garda Station/ Immigration office .

Following his visit to the Garda Station a group of Garda� called to the Respondent’s premises and undertook a search. A copy of the Complainant’s passport was found on the premises. As a result of this search the Respondent was threatened with prosecution for having employed the Complainant without a work permit. No prosecution was, in fact, initiated.

With regard to the quantum of the award made by the Equality Officer, Mr Watters told the Court that the Respondent Company had experienced a serious down-turn in its business. He said that they had tried to raise the funds necessary to discharge the award made by the Equality Officer rather than attend the Court but was unable to obtain such funding.

Submissions
Mr James McGowan B.L, for the Respondent submitted that victimisation within the statutory definition can only arise in relation to a person’s employment. This, it was submitted, arises from the language of S.74(2) of the Act, which refers to adverse treatment of an employee by an employer. It was further submitted that the action taken by the Respondent in the instant case was for the purpose of protecting its position in impending litigation. This, it was submitted, could not amount to victimisation. In support of that proposition reliance was placed on the judgment of the House of Lords inChief Constable of the West Yorkshire Police v KhanUKHL 48.

It was further submitted that the award made by the Equality Officer was, in all the circumstances, grossly excessive. Counsel submitted that the Complainant was still employed by the Respondent and had not suffered any loss of wages arising from the matters of which he made complaint. Counsel also submitted that the circumstances of the Respondent were such that it is unable to discharge the amount of the award.

The Complainant
The Complainant contends that having become aware of his complaint of discrimination the Respondent contacted An Garda S�ochána about his immigration status. In consequence he was arrested and charged with offences under the Immigration Act 2004. He was subsequently convicted and received the benefit of the Probation of Offenders Act 1907. It was submitted that the conduct of the Respondent in this regard amounted to victimisation within the meaning of S.74(2) of the Act.

The Court was told that the Complainant had never been in trouble with the police either in Ireland or in his native country. He was extremely distressed and traumatised by his experience.

A letter from Garda Fitzpatrick, addressed to the Complainant’s Solicitor, in relation to his contact with Mr Watters, was admitted in evidence by agreement between the parties.

This letter records that Mr Watters contacted the writer in mid-January 2006 and enquired if it would be possible to get a residence stamp on the Complainant’s passport. As a result of checks which he carried out into the Complainant’s status, Garda Fitzpatrick found that the Complainant had registered in Templemore in 2002 with a work permit for another employer. The Complainant was then given a residency stamp entitling him to remain in Ireland until 29th March 2003. The Garda record showed that the Complainant made no further contact with the immigration service.

The letter goes on to say that the writer reverted to Mr Watters in late January 2006 and informed him that it would not be possible to give the Complainant a residency stamp due to the lapse of time since the last residency stamp was issued.

The letter further records that the writer called to the Complainant’s home and asked for his passport. The Complainant informed Garda Fitzpatrick that Mr Watters had his passport. Details of the case were then forwarded to the Immigration Unit at Dundalk Garda Station. Subsequently a warrant was obtained under the Employment Work Permits Act 2003, on foot of which a search was carried out of the Respondent’s premises. In the course of that search a copy of the Complainant’s passport was found.

The letter indicates that a prosecution under the Employment Permits Act was being considered against the Respondent.

The Court was told that the Respondent was not subsequently charged with any offence. The Complainant was charged with failing to produce his passport and with remaining in the Country after the expiry of his residency stamp.

In evidence the Complainant told the Court that he was threatened with deportation but his Solicitor obtained permission for him to remain. He told the Court that he does not have a current work permit but he expects to get one shortly. He has a residency stamp.

The Complainant confirmed that his current passport was issued on 1/2/08 and will expire in 2018. He confirmed that his previous passport had expired in 2003. He accepted that he could not have obtained a residency stamp without a current passport. He said that his passport was not renewed because he could not travel back to Moldova for that purpose. He told the Court that if he left Ireland he could not re-enter the country without a current work permit. Eventually his wife, who is resident in Moldova, renewed his passport.

Submission.
Ms Bolger B.L., on behalf of the Complainant, submitted that there is no statutory basis upon which the Court could take the Respondent’s ability to pay an award of compensation into account. Counsel submitted that the criteria to be applied in measuring quantum is well established in the jurisprudence of this Court. The award, it was submitted, must reflect the gravity of the transgression and provide adequate compensation for economic loss. The Court was urged to take account of the significant expense incurred by the Complainant in regularising his position in consequence of the Respondent’s failure to apply for a work permit on his behalf.

In reply to the legal submissions made by Counsel for the Respondent, Ms Bolger submitted that the decision of the House of Lords inChief Constable of the West Yorkshire Police v Khanis not apposite in the instant case because the U.K. statute is differently worded to the Act of 1998. Counsel also submitted that the Court must take a wide view of what constitutes victimisation and should not confine that concept to situations in which a victim suffers a detriment in his or her conditions of employment. Counsel submitted that the jurisprudence of the ECJ makes it clear that victimisation can occur where a person suffers a detriment outside of the employment relationship in consequence of seeking to enforce their right to equal treatment.

The Facts.

Having regard to the admissions made by the Respondent, the only issues before the Court is whether the Complainant was subjected to victimisation and whether the awards made by the Equality Officer are excessive. With regard to the former, the Court has firstly to consider if the actions of the Respondent in alerting the immigration unit of the Garda S�ochána to the Complainant’s circumstances, having regard to the consequences that flowed therefrom, amounted to victimisation within the statutory definition of that term.

In accepting the decision of the Equality Officer on the question of discrimination (subject only to its appeal on quantum) the Respondent is now bound by the findings of fact made by the Equality Officer in arriving at that decision. Of particular relevance in considering the question of victimisation is the finding of the Equality Officer that the Respondent discriminated against the Complainant on grounds of his race in failing to obtain a work permit in respect of his employment. That conclusion necessarily involved a finding that the Respondent had a responsibility to obtain such a permit for the Complainant and that it had failed to discharge that responsibility.

The primary facts material to this aspect of the case are not seriously in dispute although the inferences which should be drawn from those facts is very much in issue. It is clear that the Respondent employed the Complainant in August 2003 and either knew or ought to have known that he required a work permit. The Respondent obtained a copy of the Complainant’s passport which showed his nationality and the expiry date of that passport. The Respondent employed other workers from Eastern European States in respect of whom it had obtained work permits. Had the Respondent similarly fulfilled its duty to the Complainant the difficulties which he subsequently encountered would never have occurred.

The Respondent appeared content to employ the Complainant notwithstanding his irregular employment and immigration status until it received notification of his impending personal injuries claim and his proposed claim under the Employment Equality Acts. In light of its previous indifference regarding the Complainant’s status the evidence tendered to the effect that the revelation that he did not have a work permit caused surprise and disappointment on the part of the Respondent must be approached with considerable caution.

What is clear is that the Mr Kelly, who had experience of obtaining work permits, contacted the Department of Enterprise Trade and Employment to enquire if a work permit could be obtained for the Complainant. It would appear that in the course of a short if not cursory conversation with an unidentified official of the Department Mr Kelly was told that a work permit could not be issued. It is also clear from the evidence that the official concerned was not told that the query was in respect to a current employee rather than a prospective employee. In any event the matter was not pursued further with the Department.

It is also clear that on being informed of the situation Mr Watters decided to attend at Drogheda Garda Station and to inform Garda Fitzgerald of the situation. There was considerable controversy as to the object or purpose of Mr Watters visit. Mr Watters told the Court in evidence that he was anxious to regularise the Complainant’s residency status so as to ensure that his personal injuries claim would be covered by the Respondent’s insurance. Mr Watters appeared to have no clear idea as to what difficulties might be posed in that regard. It seems strange that he did not consult either his insurers or his Solicitor in respect of whatever concerns he had. It is equally strange that Mr Watters, according to his direct evidence, was unconcerned at the proposed claim under the Employment Equality Acts in which the Respondent’s failure to obtain a work permit for the Complainant was directly in issue.

It seems to the Court that in approaching a member of An Garda S�ochána attached to the immigration office, and informing that officer of the Complainant’s circumstances, Mr Watters must have anticipated that further investigations might ensue with serious consequence for the Complainant. Such consequence should have been particularly foreseeable in light of the opinion expressed by the Department of Enterprise Trade and Employment on the likelihood of obtaining a work permit for the Complainant.

The question for the Court, however, is if this confluence of events amounts to victimisation.

The Law

It was submitted on behalf of the Respondent that victimisation could only arise where a person suffers a detriment in his or her conditions of employment. The Court does not accept that submission. The State’s obligation to provide protection against victimisation is primarily derived from Article 11 of Council Directive 2000/78/EC (the Framework Directive) which defines victimisation, as follows:-

• Member States shall introduce into their national legal systems such measures as are necessary to protect employees against dismissal or other adverse treatment by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment.

• 'The principle of effective judicial control laid down in Article 6 of [the Directive on equal treatment] would be deprived of an essential part of its effectiveness if the protection which it provides did not cover measures which, as in the main proceedings in this case, the employer might take as a reaction to proceedings brought by an employee with the aim of enforcing compliance with the principle of equal treatment.'

National Definition
Victimisation is defined by S.74(2) of the Act as follows: -

• 
  “(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

• This is an amended definition which was inserted in the Act by S.29 of the Equality Act 2004. Its introductory words, in particular, clearly comport with the language used in Article 11 of the Directive, which in turn follows the formulation used by the ECJ in the passage fromCoote v. Granda Hospitality Ltd,recited above.

  It was submitted on behalf of the Respondent that the application of this provision requires a subjective test. That is to say the Court should ask itself why did the Respondent act as he did? In support of this submission the Respondent relied upon the Speech of Lord Nicholls of Birkenhead inChief Constable of the West Yorkshire Police v Khan, in which the following appears at paragraph 29,

  • 
    Contrary to views sometimes stated, the third ingredient ('by reason that') does not raise a question of causation as that expression is usually understood. Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the 'operative' cause, or the 'effective' cause. Sometimes it may apply a 'but for' approach. For the reasons I sought to explain inNagarajan's case[1999] 4 All ER 65 at 70–72,[2000] 1 AC 501at 510–512, a causation exercise of this type is not required either by S 1(1)(a) or S 2. The phrases 'on racial grounds' and 'by reason that' denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.

• 'A person (“the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has—(a) brought proceedings against the discriminator or any other person under this Act; or (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or (c) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or (d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.'

As appears fromKhanthe impugned reaction can be conscious or unconscious. This reflects the general principle of equality law enunciated by Neil LJ inKing v Great Britain-China Centre[1991] IRLR 513, and adumbrated by this Court inNevins, Murphy, Flood v Portroe Stevedores[2005] 16 ELR 282, as follows: -

• Discrimination is usually covert and often rooted in the subconscious of the discriminator. Sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware. Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, the court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.

It was submitted on behalf of the Respondent that before liability can accrue under S.74(2) it is necessary to establish that the employer intended the adverse treatment complained of. The wording of the subsection does not suggest that the subjective intent of the alleged victimiser is an essential ingredient of the civil wrong that it creates. Moreover, in equality law generally, liability is not dependant of proof of fault or a subjective discriminatory intent on the part of the discriminator. This was made clear inC-177/88Dekker v Stichting Vormingscentrum voor Jonge Volwassenen,[1991] IRLR 27and later in C-180/95Draehmpaehl v. Urania Immobilienservice OhGICR 164

InDekkerthe Court of Justice stated the position thus:-

• Although the Equal Treatment Directive leaves the Member States, as regards the sanction for breach of the prohibition of discrimination, free to choose one of the various methods suitable for achieving its objective, it nevertheless requires that where a Member State chooses a civil law sanction, any breach of the prohibition of discrimination must in itself be sufficient to impose full liability on the discriminator and that no account can be taken of grounds for justification provided for under national law.

• When a Member State chooses to penalise, under rules governing civil liability, breach of the prohibition of discrimination,Council Directive 76/207/EECof 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, and, in particular, Articles 2(1) and 3(1) thereof, preclude provisions of domestic law which make reparation of damage suffered as a result of discrimination on grounds of sex in the making of an appointment subject to the requirement of fault.

In any event, even if the intention of Respondent is a relevant consideration, S. 85A of the Act would clearly operate, on the facts as proved or admitted, so as to shift the burden of proof to the Respondent. It is thus for the Respondent to prove that the adverse treatment suffered by the Complainant was neither intended nor foreseeable.

Conclusion.

The Respondent employed the Complainant without a work permit in August 2003. The evidence tendered on behalf of the Respondent was that it assumed that it did not need one because the Complainant had a PPS number. Mr Kelly in evidence later said that it is necessary to have a PPS number before a work permit will issue. The Respondent employed several East European Nationals and had experience of obtaining work permits. He must have known what was involved. Moreover, the Respondent held a copy of the Complainant’s passport and must have known his nationality. In any event the Respondent has admitted liability for discrimination against the Complainant on the race ground in not obtaining a work permit in respect of his employment. It cannot now resile from that admission.

Mr Watter’s visit to the Garda Station / Immigration office was as a direct result of the information which he received from Mr Kelly to the effect that the Complainant was taking proceedings,inter alia, arising from the Respondent’s failure to obtain a work permit on his behalf. In opening the case for the Respondent, Counsel told the Court that Mr Watters contacted the immigration office in order to safeguard the Respondent’s position in the impending litigation. In his evidence in chief Mr Watters told the Court that he was only concerned about the personal injuries case and that he did not understand what the equality case was about. Yet, the Complainant’s status, and the Respondent’s failure to obtain a work permit in relation to him, only arose in the equality case.

In his evidence to the Court Mr Watters indicated that he was acting in ease of the Complainant in meeting with Garda Fitzpatrick. This, he said, was because he feared that the Complainant could not proceed with his personal injuries claim if his immigration status was not regularised. It seems extraordinary that Mr Watters made no enquiry of his insurers on this point. Nor did he seek legal advice. No rational basis was suggested for Mr Watter’s putative concerns. Further, the Respondent had processed a number of work permit applications and knew that the appropriate authority is the Department of Enterprise Trade and Employment. No explanation was given as to why Mr Watters, or Mr Kelly, believed that the Garda� could be of more assistance than the Department in regularising the situation.

Whatever the reason for Mr Watters visit to the Garda Station, and whatever his primary request, he told Garda Fitzpatrick that the Complainant was working without a work permit and without a residency stamp. Following his earlier conversation with Mr Kelly, Mr Watters must have known that there was, at least, a strong probability that little could be done for the Complainant. He must have known that if the Complainant’s position could not be regularised Garda Fitzpatrick would be duty bound to act on the information which he had received and to proceed against the Complainant. Even if he did not subjectively appreciate that likelihood, it was clearly foreseeable.

It is true that in informing Garda Fitzpatrick of the situation Mr Watters exposed the Respondent to the possibility of prosecution. But he also knew, or ought to have known, that the Complainant would be on hazard not only of prosecution but of deportation. If the Complainant had been deported, which was in fact threatened, that would have been the end of his equality claims.

The Complainant has established fact from which victimisation can be inferred. Accordingly it is for the Respondent to prove that the Complainant was not victimised. The evidence tendered on behalf of the Respondent falls significantly short of what is required to discharge that probative burden. Accordingly the Complainant is entitled to succeed.

Quantum.

The Respondent contends that the award of the Equality Officer is excessive in all the circumstances. In advancing that argument reliance is placed on the poor financial circumstances of the Respondent and its claimed inability to meet the award. It is also pointed out that the Complainant did not suffer any pecuniary loss in consequence of the matters of which he makes complaint.

There is no support in authority or in statute for the proposition that the Court should have regard to the financial circumstances of a Respondent in measuring the quantum of compensation to which a successful Complainant is entitled. Section 82(1)(c) of the Act merely provides that the Court may make “an order for compensation for the effects of acts of discrimination or victimisation….”. Article 15 of Directive 2000/43/EC (the Race Directive) and Article 17 of Directive 2000/78/EC (the Framework Directive) provides that compensation must be“effective, proportionate and dissuasive”.While the size of any award intended to have dissuasive effect may, for its effectiveness, have to take account of the financial capacity of an enterprise, the other elements of the award are related solely to the pecuniary loss suffered by the Complainant and the gravity of the transgression. The financial capacity of the Respondent is neither an aggravating nor a mitigating factor in measuring compensation under those headings.

The Court was urged to have regard to the costs incurred by the Complainant in pursuing the within proceedings and related legal issues arising from the discrimination and victimisation which he suffered. The Court accepts that it was necessary for the Complainant to engage a full legal team in order to adequately prosecute his claim before the Equality Tribunal and to defend the within appeal. Nonetheless, this Court has no jurisdiction to award costs. While it may result in some anomalies, the Court has consistently pointed out that it cannot overcome this limitation on its jurisdiction by inflating a compensatory award to take account of the costs incurred by a successful party in litigating their case.

The Equality Officer awarded the Complainant compensation in the amount of €10,000 for four separate incidents of discrimination. Although there was no element to cover pecuniary loss it could not be held that the award was disproportionate to the discrimination which occurred.

It is well established in the jurisprudence of both this Court and that of the Equality Tribunal that victimisation is totally unacceptable and this must be marked in measuring redress where it is found to have occurred (see the decision of this Court inDublin City Council v McCarthy(Determination EDA022).

However in this case there are a number of elements constituting the adverse treatment on which the Complainant relies. Amongst them is his complaint at having been arrested by the Gardai, brought before the Courts and convicted of minor offences. This was undoubtedly a source of extreme upset and anxiety for the Complainant. However the within proceedings cannot be used to mount a collateral attack on the activities of the Garda� or on the Court proceedings to which the Complainant was subjected. In the Court's view it would be contrary to public policy to take account of these matters in measuring the level of compensation to which the Complainant is entitled. Moreover, there was no evidence that the Complainant suffered pecuniary loss in consequence of the victimisation which he suffered. In that regard it is noted that he is still employed by the Respondent.

Nonetheless, on the findings which the Court has reached the Respondent did victimise the Complainant by bringing him to the attention of the Garda� in reaction to his claim of discrimination under the Act. That is a matter of the utmost seriousness which should be marked with a substantial award of compensation. Having regard to all the circumstances of the case the Court considers that an award of €20,000 in respect of this victimisation is appropriate.

DETERMINATION:

The Court is satisfied that the Complainant herein was discriminated against on grounds of his race and that he was victimised in contravention of the Act. The decision of the Equality Tribunal in that regard is affirmed. The award of compensation made by the Equality Tribunal is respect of discrimination is similarly affirmed. The award in respect of victimisation is varied to one of €20,000.

Both monetary awards are in respect to the effects of the discrimination and victimisation to which they relate. They do not contain any element to cover loss of pay.

Signed on behalf of the Labour Court



Kevin Duffy
6th May, 2009______________________
JFChairman



NOTE

Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.