THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS , 1998-2008
Decision DEC - E2010 - 254
PARTIES
Mr Vladimir Krasnov
(represented by Richard Grogan & Associates)
and
Martin Codd
File Reference: EE/2007/507
Date of Issue: 15th December 2010
Headnotes: Employment Equality Acts, 1998 & 2004, section 6,8, 14 and 77 - Section 6(2)(h) - Tax documentation - Inferences drawn - Family as comparator - Contract of employment - notional comparator
1. Dispute
1.1. This case concerns a complaint by Mr. Vladimir Krasnov ("the complainant") that he was discriminated against by Mr Martin Codd ("the respondent") on the ground of race contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 (hereinafter referred to as "the Acts") in relation to (i) conditions of employment and (ii) dismissal contrary to sections 8(1)(b) and 8(6)(c) of the Acts.
1.2. Claims in relation to training, victimisation, harassment, pay and in relation to a collective agreement were withdrawn by the complainant at the hearing of the matter.
2. Background
2.1 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 17th September, 2007, alleging that the respondent had discriminated against him on the ground of race (with respect to nationality).
2.2 On the 31st August, 2009, in accordance with her powers under section 75 of the Acts, the Director delegated the case to me, Gary O'Doherty, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Acts, on which date my investigation commenced. Written submissions were sought from both parties, but received only from the complainant.
2.3 A hearing of the complaint was held in Carlow on Wednesday, 8th September, 2010. As particular allegations were made by the complainant at the hearing which had not been elaborated upon in the complainant's submissions (pars. 3.2 to 3.4 below), the respondent was provided with an additional opportunity to respond to these allegations in writing after the hearing. He did not avail of that opportunity. Additional documentation was also sought from the respondent. However, the respondent failed to provide the documentation requested by the Tribunal. His only response was to make contact with the Tribunal in a telephone call on 22nd November, 2010, to seek additional time to provide the correspondence in question. This additional time was given to him, but he still did not provide these documents. (Further detail of these matters are provided in par. 5.6 below).
3. Summary of the Complainant's case
3.1. The complainant is an Estonian national and native Russian speaker who submitted that he was employed by the respondent between 1st February 2006 and 18th May 2007. At the hearing of the matter, the complainant withdrew a number of allegations relating to training, harassment, victimisation and collective agreement and some aspects of his claim relating to conditions of employment. Therefore, the issues remaining for the Tribunal to consider were: i) a claim in relation to not being provided with proper payslips and/or tax documentation. ii) a claim in relation to an alleged discriminatory dismissal, iii) a claim in relation to not receiving a written contract of employment.
i) Claim in relation to tax and pay documentation
3.2. At the hearing, the complainant adduced evidence that the respondent had not provided him with payslips, a P60 or a P45. In that respect, he submitted that, having concluded working for the respondent, he made inquiries with Revenue who told him that, at that point, it had no records for him having paid tax for that year.
3.3. The complainant stated that there were two other Irish employees working for the respondent, Mr B and Mr C, along with the respondent's two sons. However, he said that he had no information as to what was the situation in relation to the tax affairs of these workers or any others who worked for the respondent. He submitted that he was relying on a notional Irish comparator in that respect and said that a notional Irish comparator would have known how to go about organising their tax affairs and obtaining a P45. He said there was a matter of weeks whereby the complainant was working with the respondent and not paying tax. He said that he never questioned his tax situation while he was working for the complainant as he was not sure how it all worked. He said that he was paid in cash each Friday and did not ask for payslips as he did not know he needed to receive these documents.
3.4. The complainant said that this failure on the part of the respondent to ensure his tax affairs were in order impacted on him in that when he returned to Estonia he had no proof of having worked in Ireland. He said he only found out he needed a P45 when he sought employment after he had finished working with the respondent, and that this also had a detrimental impact on him.
ii) Alleged dismissal
3.5. The complainant submitted that he was dismissed by the respondent and that no reason was given for the dismissal. He stated that, on a particular Friday, the respondent, without any prior notice to him, told him that there would be no work for him the following Monday. He said that the respondent told him to wait for his call as to whether there would be more work available. He said that he worked with the respondent again for 3 days after this, approximately 2-3 weeks later, but received no further work. He said that two Latvian workers were dismissed before him, and then himself and Mr A, a colleague who was Latvian, were dismissed. He said that, after his dismissal, there were only Latvians and the respondent's two sons left and he did not know whether there were any other Irish persons left, although he stated later that Mr B and Mr C (who he understood to be labourers) were still working with the respondent after he was dismissed. He said there were a number of Latvian nationals who started working for the respondent after the complainant did, but that Mr B and Mr C were there before him.
3.6. The complainant stated that he was relying on a notional Irish comparator to prove his case in this respect as he did not have sufficient information on Irish workers and on how or when they were dismissed. He stated that an Irish person would not have been told he was dismissed in the manner which the complainant was told this. He submitted that he was discriminated against in this context, and that there was no notice given and no procedures followed.
3.7. The complainant also submitted that he was a qualified stonemason and that he was employed by the respondent as such, and not as a general labourer, and gave evidence to that effect.
iii) Contracts of employment/Health and Safety documentation
3.8. The substance of the complainant's submission in relation to claim iii) above is that, under the Equality Officers decision in 58 named Complainants -v- Goode Concrete, there is an obligation on an employer to provide a Contract of Employment in a language likely to be understood by the Complainant but that the respondent did not provide him with any contract of employment, which he submitted that the respondent has admitted to. He submitted that no Russian speaking worker who worked with the respondent received a contract of employment. In that regard he stated that Mr A also did not receive a contract of employment. He said that he mostly worked with Mr A, so did not ask anyone else if they received such a contract, including Irish workers. He stated that the fact that he did not have a contract of employment for his time working in Ireland had affected his pension rights in Estonia. He said a health and safety statement was made available to him.
3.9. The complainant submitted that the respondent did not reply to the EE1 form or the notice of particulars requested from the respondent, and that I should draw inferences from that failure. In particular, he submitted that this, and the complete lack of documentation on the part of the respondent, requires that the Tribunal should consider what the position would be concerning a notional comparator. He submitted that in the case of a notional comparator being an Irish national they would be aware of their entitlements to a health and safety statement and a statement under Section 3 of the Terms of Employment (Information) Act. In that respect, he submitted that he was discriminated against by not being provided with a contract of employment.
4. Summary of the Respondent's case
4.1. The respondent is a sole trader and architectural stonemason. He did not provide any submissions in advance of the hearing. However, he was present at the hearing. He said that he was subcontracted to a principal contractor, Z Ltd, during the time when the complainant worked for him. He stated that the complainant and Mr A travelled together and lived in the same house.
i) Tax documentation
4.2. The respondent categorically denied that there were any irregularities in the complainant's tax situation. In that respect, he stated that the reason that Revenue did not have an up-to-date account of the complainant's tax situation when he inquired into it was that he was not obliged to provide that information to Revenue until later in that year, and that this information was provided then and in accordance with the applicable regulations. He said that the complainant never asked for a P45, but that he gave him his P45 nonetheless by putting it in his postbox in his last address given. He stated that he did this a couple of days after 28th March, 2007 when he said the complainant left.
4.3. The respondent added that the complainant was paid more than his own sons. He said that Mr B worked for him, but he did not know who Mr C was (although he later said that there was one other Irish worker who was not Mr B or his sons). Furthermore, he submitted that these matters were not raised by the complainant in his submission in advance of the hearing and should have been, although he was satisfied to deal with those matters at the hearing.
ii) Dismissal
4.4. The respondent said that he never dismissed the complainant. He said that the complainant left of his own volition on 28th March, 2007 when, after Mr A had been asked for an increase in pay and the respondent had refused this, he and the complainant left to work elsewhere. He said that the complainant went to work for someone else immediately after working for him and speculated that the complainant left because Mr A was leaving.
4.5. The respondent said that, at one stage during his employment with him, the complainant went to visit his father in Estonia and said that this may explain why the complainant thought there had been a gap in his employment with him. He said he had no recollection of a conversation with the complainant in which the complainant alleged he said there would be no work the following Monday (see par. 3.4 above). He said that, though the complainant said he didn't have good English, he could understand the complainant and the complainant could understand him.
ii) Contracts of employment
4.6. The respondent said that he had no written procedures or contracts. However, he said that this was the same with all employees. He said he agreed with the complainant on a starting date, which was 1st February, 2006, and that the complainant finished working with him on 28th March, 2007. He said that he thought all his employees were Latvian, until he realised that the complainant was Estonian. He said that some of the persons who the complainant said worked for him were actually working for Z Ltd. He stated that there was no such thing as a notional worker, that you are either on site or not.
Conditions of employment generally
4.7. The respondent said that when he was hiring the complainant and Mr A, he discussed price (i.e. wages) with them, and they agreed on wages per hour. He said that himself and his employees worked as a "gang". He said that the "gang" consisted of himself, his two sons, Mr A and the complainant and Mr B and one other named Irish worker (who was not Mr C). He stated that he, his two sons and Mr B were the stonemasons in the team. He said he was clear in hiring the complainant as a general operative and denied that the complainant was ever employed as a stonemason, giving evidence in that respect.
4.8. The respondent said that the complainant and Mr A were "lovely gentlemen to work with". He said that even though they were "fellows" who didn't understand each other's languages, "they had craic together". He stated that the all his workers were trained in safety procedures and everyone received a Safepass. He said he had been a reputable employer since 1972. In short, the respondent said that he went out of his way to treat everyone equally and there was no way he could have discriminated on any grounds.
5. Conclusions of the Equality Officer
5.1. Section 85A of the Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him/her. If he/she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2. Section 6(1) of the Acts provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)....." Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows - "as between any two persons ..... that they are of different race, colour, nationality or ethnic or national origins.." It follows therefore that the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because he is Estonian.
5.3. The issue for decision by me in this case, then, is whether or not the respondent discriminated against the complainant on grounds of race, in terms of section 6(2)(h) of the Acts and contrary to section 8 of the Acts in terms of conditions of employment and dismissal. In reaching my decision I have taken into account all of the submissions, both oral and written, made to the Tribunal in the course of its investigation.
5.4. There are three principal matters for me to consider in this case. Firstly, whether the respondent failed to provide the complainant with the relevant pay and tax documentation and, if he did fail to do so, if that failure was discriminatory. Secondly, whether the complainant was dismissed by the respondent and, if so, whether that dismissal was discriminatory. Thirdly, whether the respondent failed to provide a contract of employment and/or health and safety statement, and if so, whether that failure was discriminatory.
Tax documentation and related matters
5.5. The respondent stated at the hearing that he did not provide the complainant with payslips, but stated quite categorically that all matters relating to tax were in order. In that respect, he stated that he hand-delivered the complainant's P45 to his last known address.
5.6. In a letter to the respondent dated 17th September, the Tribunal requested the respondent to provide any and all records relating to the complainant's employment with it, in particular records relating to pay and taxation, before 7th October. He failed to do so in the timeframe allowed. In further letters of 15th October and 8th November, and despite receiving no response, the Tribunal afforded him additional time to provide these documents. In the letter of 8th November, and in light of the respondent's failure to comply with the earlier two requests, the Tribunal requested additional information relating to the respondent's Irish employees, in particular his sons. On 22nd November, the respondent made a phone call to the Tribunal to say that he needed further time to provide these documents. The Tribunal agreed to provide him with an additional two weeks and wrote to him on 23rd November in this respect, allowing a final date of 6th December for receipt of these documents. None of the information requested has been provided and the phone call of 22nd November is the only contact that the respondent has made with the Tribunal since the hearing of the matter.
5.7. In accordance with the principles outlined in the case of Iarnrod Eireann -v- Mannion , I am satisfied that I can draw an inference from the failure of the respondent to provide the requested information. I also note that the complainant made a request for a P45 and/or P60 and the respondent's P35 tax document in its notice of particulars issued to the respondent with the complaint, as it is entitled to do under Section 76(1) of the Acts. I note that the respondent did not respond to this notice of particulars and, under Section 81 of the Acts, I may draw an appropriate inference from that failure with respect to the documents in question.
5.8. It is clear from the complainant's submission that Revenue confirmed his tax affairs were in order in 2007, but that there was a question as to whether tax had been paid on the complainant's behalf at the beginning of 2008. If I were to believe the respondent that the complainant's tax affairs were in order, then I see no reason for him not to provide the documents requested by the Tribunal. That he has failed to do so leads me to conclude that this was not the case and, in fact, he was not paying tax to Revenue for the complainant in the manner in which he should have been. In the interests of clarity, let me state that there is no evidence that the respondent was deliberately failing to comply with the relevant taxation regulations; it may have been more a case of the respondent not having put in place the necessary procedures to ensure a timely and effective compliance with the relevant taxation requirements with respect to the complainant. In particular, I am satisfied that the complainant was not provided with a P45 by the respondent immediately upon the termination of his employment with him.
5.9. On the other hand, I note that the issues relating to tax were not raised by the complainant prior to the hearing of the matter, other than the aforementioned request in the notice of particulars, which included 37 other questions unrelated to issues regarding tax documentation. If the complainant was so seriously affected by any failure on the part of the respondent to ensure his tax affairs were in order, I find it difficult to believe that he would not have raised it directly with the Tribunal prior to the hearing of the matter. In short, I must conclude that the production of the relevant documents by the respondent to the Tribunal would not be in his favour to the extent that he did not ensure that the complainant's tax affairs were in order as they should have been. Equally, based primarily on the complainant's own lackadaisical approach to this aspect of his case, I am satisfied that the only less favourable treatment that he suffered was the mere failure of the respondent to ensure the complainant's tax affairs were in order. I am not satisfied that it stood in the way of the complainant obtaining further employment or obtaining social assistance or particular benefits in any jurisdiction, as the case may be.
5.10. The question remains, however, as to whether this less favourable treatment was related to the complainant's nationality. I am satisfied that the respondent would not have left his sons in a situation where they could have run into difficulties obtaining further employment or availing of their social welfare entitlements because of a failure on the respondent's part to ensure their tax affairs were in order. If they were the only Irish comparators, it could lead to a presumption that there was less favourable treatment on the ground of nationality. However, they were not the only such comparators as I am satisfied that there was at least one other Irish worker who was not a family member (i.e. Mr B) and there may have been another, possibly Mr C. I am satisfied that the complainant was employed as a general operative, whereas Mr B was employed as a stonemason. However, in the context of the allegations in relation to the tax documentation, I can see no reason why he would not be a suitable comparator. The question remains then as to whether the complainant was treated less favourably on the grounds of nationality with respect to Mr B (and also Mr C).
5.11. In Melbury -v- Valpeters the Labour Court considered a situation where a non-Irish worker was wrongly classified as a sub-contractor by an employer for tax purposes. It found that such practices were "by no means confined to workers whose national origin is outside Ireland." I agree with the Labour Court in this respect, and consider that, where errors and/or omissions by an employer in relation to taxation take place, whether deliberate or otherwise, it is often the case that they are not confined to non-Irish workers.
5.12. In that light, and despite the failure of the respondent to provide the requested documentation in relation to his Irish employees, I consider that I cannot reasonably draw an inference that this failure meant that the tax affairs of Mr B (and/or Mr C) were in order. Furthermore, it is most likely that any different treatment of the respondent's sons by him, if such took place, would have nothing to do with nationality and everything to do with family responsibilities. As the onus is on the complainant to show a prima facie case of discrimination, and I cannot be satisfied that the complainant was treated less favourably than Mr B (and/or Mr C) in this respect, the complainant has failed to establish a prima facie case with respect to this aspect of his complaint.
Alleged dismissal
5.13. In relation to the alleged dismissal, and in light of the totality of the evidence and inferences I have already outlined, I did not find the evidence of either the complainant or respondent to be particularly credible. While one of their stories had to be closer to the truth than the other, the onus is on the complainant to establish a prima facie case. As I am not satisfied from his evidence that he was dismissed by the respondent, his complaint with respect to this aspect of it also fails.
Contract of Employment
5.14. The complainant also submits that the respondent's admitted failure to provide the complainant with a written contract of employment was discriminatory in light of the principles outlined in the decision of this Tribunal in the Goode Concrete case. He submits that this decision found that a failure of an employer to provide a contract of employment in a language likely to be understood by the complainant was discriminatory in and of itself. However, in Goode Concrete, the complainants were provided with a contract of employment: the issue was that they did not understand it. In the present case, it is clear that no contract of employment was provided to anyone and the present case must be distinguished from the decision in Goode Concrete in that respect.
5.15. I note the complainants contention that "a notional comparator being an Irish national....would be aware of their entitlement to a Health and Safety statement and to a statement under Section 3 of the Terms of Employment (Information) Act". Even if I were to accept the applicability of a notional comparator to the present case, I consider that this statement is inaccurate in assuming that, in any given situation, most Irish workers, at least, would be aware of such rights and I do not consider it reasonable for the complainant to draw this conclusion. In any event, it is clear that there are suitable comparators in the present case and, in those circumstances, I do not accept that the Tribunal should consider a notional comparator. There is no evidence that Mr B (and/or Mr C) was aware of his rights with respect to this aspect of the claim and I do not consider it reasonable to presume that he was.
5.16. Therefore, the complainant has failed to show that he was treated less favourably by not being provided with a written contract of employment. As there is no remaining aspect to the complainant's case, I find that he has failed to establish a prima facie case of discrimination on the race ground, on the basis of his nationality, and his case fails.
6. Decision
6.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008:
6.2. I find that the complainant has failed to establish a prima facie case that the respondent discriminated against him on the race ground pursuant to section 6(2)(h) of the Acts in terms of conditions of employment contrary to S.8(1)(a) of the Acts and in terms of dismissal contrary to Section 8(6)(c) of the Acts.
6.3. Accordingly, the complainant's case fails.
_____________
Gary O'Doherty
Equality Officer
15th December 2010