THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2009-098
PARTIES
Mr. Arturs Braslis
(represented by R. Grogan & Associates, Solicitors)
and
Tevana Ltd.
File Reference: EE/2007/245
Date of Issue: 28th October 2009
Headnotes: Employment Equality Acts, 1998 and 2004 -Employment Equality Acts, 1998 - 2008 - discriminatory treatment - conditions of employment - race - burden of proof - less favourable treatment - discriminatory dismissal.
1 Claim
1.1 Mr. Arturs Braslis claimed that he had been discriminated against by the respondent on the race ground, in terms of section 6(2) of the Employment Equality Acts, 1998-2007 in relation to conditions of employment and pay. He also made a claim in relation to harassment on the race ground and claimed discriminatory dismissal contrary to the Acts.
2 Background
2.1 The complainant referred a claim to the Director of the Equality Tribunal under the Employment Equality Acts 1998-2007 on 4th April 2007. In accordance with her powers under section 75 of the Acts, 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 Act. The date of delegation was 8th May 2009 and my investigation began on that date.
2.2 A hearing of the claim took place on 3rd July 2009. The complainant's representative submitted further information received on 8th July 2009.
2.3 At the hearing the complainant's representative clarified that the reference to pay on the complaint form was not a claim for equal pay in comparison to other workers. The complaint was that the complainant had never been paid what he believed himself to be entitled to under the relevant REA.
3 Summary of the Complainant's Case
3.1 The complainant, a Latvian, worked for the respondent from June 2006 until 9th February 2007. There were approximately 10 people working on the site from various eastern European countries including himself. There were people coming and going all the time. His earnings were lodged directly to his bank account but he received no payslips. The other workers there did not receive payslips either. The complainant had completed his own Safe Pass course.
3.2 The complainant's representative argued that requiring a complainant to prove less favourable treatment, in a situation where the employer had only employed eastern European workers, was effectively to remove the protection of the legislation from these workers and to provide employers with a roadmap on how to discriminate.
3.3 It was also argued that the Race Directive was relevant. When asked to elaborate on this assertion, given that the Directive is explicit in relation to differences in nationality, it was argued on his behalf that the complainant was of Latvian race just as Irish people were of Irish race.
3.4 It was further argued that it was incumbent on the Tribunal to use a hypothetical Irish comparator in this case and that such a comparator would know all of his/her employment rights and would not accept such employment or such treatment during employment. Where an employer has deliberately decided to only employ foreign nationals and where there is extensive non-compliance with employment legislation, this amounts to discrimination.
4 Summary of the Respondent's case
4.1 The respondent did not respond to any correspondence from the Tribunal and did not appear at the hearing.
5 Conclusions of the Equality Officer
5.1 What must be decided is whether or not the complainant was discriminated against in relation to his conditions of employment and his dismissal. In reaching my decision I have taken account of all evidence presented.
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 The complainant's representative accepts that there is no evidence of less favourable treatment and argues that the procurement of such information is not within the complainant's realm of control. He argues that the allegedly unfavourable treatment of the complainant is sufficient of itself to establish discrimination when compared to the treatment an Irish comparator would have received. In the Recommendation ADE 0917, Melbury Developments Ltd and Arturs Valpeters, the Labour Court addressed this matter as follows: "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." I am satisfied that unfavourable treatment, without evidence of less favourable treatment, is insufficient to establish a prima facie case of discrimination in accordance with the Acts.
5.4 While I understand the argument presented in relation to the creation of a roadmap for discrimination, in a situation where an employer has deliberately decided to employ only foreign nationals so as to avoid any unfavourable comparison with Irish employees, I am of the view, where there is no evidence of less favourable treatment, that the Equality legislation is not the appropriate vehicle to counter any perceived wrongs. Any failure on the part of an employer to comply with other employment rights legislation has its own relevant and appropriate remedy.
5.5 I find the argument that each nationality has a different race to be artificial. As the difference being argued in this case relates to nationality I am satisfied that the Race Directive is not applicable
5.6 In relation to the alleged discriminatory dismissal, while I accept that the complainant's employment was terminated, he has also failed to present any evidence of less favourable treatment in respect of this dismissal.
5.7 Likewise, in relation to harassment, the complainant has failed to present any evidence of harassment on the race ground.
5.8 In the above mentioned Labour Court Recommendation the Court also stated "These observations on the requirement to prove the primary facts relied upon apply with equal force in respect to the Complainant's submissions regarding both his claim alleging discriminatory treatment and his dismissal. In neither case is there a scintilla of evidence to show that others of a different nationality to that of the Complainant were treated differently in either respect." Since the complainant has failed to present any evidence of less favourable treatment I find that he has failed to establish a prima facie case of discrimination on the race ground.
6 Decision DEC-E2009-098
6.1 Having investigated the above complaint I hereby make the following decision in accordance with Section 79(6) of the Acts. As the complainant has failed to establish a prima facie case of discrimination and dismissal on the race ground his claim fails.
Bernadette Treanor
Equality Officer
28 October 2009