The Equality Tribunal
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Employment Equality Acts
EQUALITY OFFICER'S DECISION
NO: DEC-E2009-104
Parties
Luckos
(Represented by Richard Grogan & Associates)
- V -
A & M Platinum Security LTD
File reference: EE/2007/238
Date of issue: 11 November 2009
Keywords
Employment Equality Acts - Discriminatory Treatment - Pay - Training - Race - Prima facie case
1. Dispute
1.1 This dispute concerns a claim by Mr. Ireneusz Luckos that he was subjected to discriminatory treatment by A & M Platinum Security Limited on the grounds of race in terms of section 6(2) of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 1 June 2007 under the Employment Equality Acts. On 5 May, 2009, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to Tara Coogan- 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 on which date my investigation commenced. Submissions were sought from both parties but were received from the complainant only. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 16 July 2009. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. Case for the complainant
2.1. The complainant, a Polish national, worked with the respondent company between November 2006 and March 2007. It was submitted that complainant worked nights as a doorman and was working in excess of 4 hours per night. It was submitted that the complainant had not received a medical examination in accordance with Safety, Health and Welfare at Work (General Application) Regulations 2007, SI 299 of 2007.
2.2. It was submitted that the fact that the complainant's employment rights have been violated, as highlighted by the Rights Commissioner Hearing findings, establishes a prima facie case of discrimination. It was argued that non-national workers are more vulnerable than Irish workers would be in comparable situations. It was further argued that the complainant had been promised full time hours but that often he was only required to work two nights a week. It was submitted that an Irish comparator would not have accepted a situation where they were not guaranteed minimum hours.
2.3. It was submitted that the complainant had issued a Form EE2 together with a Notice for Particulars which the respondent never replied to. It was submitted that the Tribunal should take inference from such failure.
2.4. The complainant's representative submitted that the Tribunal should consider a hypothetical comparator as set out in UK Employment Appeals Tribunal decision Balamoody v. United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2002] ICR 646.
2.5. The complainant's representative submitted that the respondent's failure to engage with the complainant should give rise to an inference of a prima facie case. Furthermore, it was submitted that the respondent, being the employer, had access to information that was particular to them and that it could not be presumed that a employee would have all the evidence without such information.
3. Case for the respondent
3.1. The respondent company has been dissolved on 03 October 2008. Notification letters were sent to the address on record. Neither the respondent nor a representative on his behalf attended the hearing.
4. Conclusion of the Equality Officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of 'sufficient significance' before a prima facie case is established and the burden of proof shifts to the respondent. Prima facie evidence has been described as 'evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred. '
4.2. The complainant stated in direct evidence that he had worked with the respondent as a doorman in a number of locations. He stated that he had both Irish and non-Irish co-workers. He submitted that a person of Asian background, who had been employed longer by the respondent, had received full hours. Therefore, I do not accept that the reason why the complainant did not work the hours promised was because of his Polish background. It is clear, from the complainant's own evidence, that the job initially offered to the complainant never materialised and he was only offered hours when the respondent required cover.
4.3. The complainant has also claimed that the respondent failed to provide him with any health and safety documentation or training and he contended that this constitutes unlawful discrimination of him on the grounds of race contrary to the Acts. The complainant told the Tribunal in direct evidence that other non-Irish workers for the company had received health and safety training. Based on this, I do not accept that the company would have, in a comparator situation, failed to provide health and safety training to Polish nationals only. Therefore, I am satisfied that the reason why the complainant did not receive health and safety training was not because of his nationality but because of the infrequent and short period of time he worked with the respondent. Similarly, I have been presented with no evidence to support an argument that the reason why the complainant was not given a contract of employment was for any other reason than the one stated above.
4.5. I do not accept that a simple presentation of Rights Commissioner's findings can give a rise of a prima facie case on the race ground. I do not accept that all non-Irish nationals are oblivious to employment rights or that such rights exist. Nor do I accept that such violations do not take place in relation to Irish nationals. The Acts were not put in place to provide non-Irish workers with more favourable treatment than would be provided to an Irish worker in similar circumstances.
4.6 While I appreciate that an employer who only employs non-Irish nationals cannot presume to defend themselves from discrimination by simply claiming that they treated everyone less favourably, the issue of a notional comparator can only become an issue when evidence to support such an approach has been presented to this Tribunal. This approach is supported by the recent Labour Court Recommendation ADE 0917, Melbury Developments Ltd v. Arturs Valpeters:
"In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."
The Court went on to say "... the Court cannot accept that the peculiar knowledge principle can avail the Complainant so as to relieve him of the obligation to prove the primary facts upon which he relies in accordance with Section 85A of the Act."
5. Decision
5.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that the respondent did not discriminate against the complainant on the race. Therefore, the complaint fails.
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Tara Coogan
Equality Officer
11 November 2009