EQUALITY OFFICER'S DECISION NO: DEC-E/2010/029
PARTIES
GOVIND BASNET
(REPRESENTED BY MR. JOHN CURRAN BL - INSTRUCTED BY
SMYTH STAPLETON & COMPANY - SOLICITORS )
AND
ELAN PHARMA INTERNATIONAL LTD
(REPRESENTED BY BCM HANBY WALLACE - SOLICITORS)
File No: EE/2006/354
Date of issue 15 March, 2010
Headnotes: Employment Equality Acts, 1998 & 2004 -Sections 6, 29 and 77 - timelimits - out of time - misrepresentation - equal pay - race - grounds other than.
1. DISPUTE
This dispute involves a claim by Mr. Govind Basnet that he (i) was discriminated against by Elan Pharma International ("the respondent") on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts, (ii) was harassed by the respondent on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 14A of those Acts, (iii) was victimised by the respondent in terms of section 74(2) of the Employment Equality Acts, 1998 and 2004 and (iv) performed "like work" in terms of section 7 of the Employment Equality Acts, 1998 and 2004 with a named comparator and was therefore entitled to the same remuneration as paid to that comparator in accordance with section 29 of those Acts (this element of the complaint was also referred on grounds of race). The complainant accepts that the matters at (i)-(iii) above were not referred to this Tribunal within the timelimits prescribed at section 77(5) of the Acts. He submits however that he can rely on section 77(6) of the Acts due to misrepresentation of certain information by the respondent. The complainant notes that the timelimits prescribed at section 77(5) do not apply to complaints in respect of equal pay. The respondent, in the first instance, rejects the complainant's assertions in their entirety. It further submits that (i) the complainant cannot rely on section 77(6) of the Acts and (ii) that the remuneration paid to the complainant and the named comparator is lawful in accordance with section 29(5) of the Acts.
2. BACKGROUND
2.1 The complainant, who is Nepalese, commenced employment with the respondent in July, 2001 and ceased employment on 31 August, 2005. The manner in which the employment relationship between the parties terminated was the subject of proceedings under the unfair dismissals legislation. The complainant states that during his employment he was subjected to discriminatory treatment, harassment and victimisation by the respondent. In addition he asserts that he received a lower rate of remuneration than that paid to a named comparator, despite both of them performing "like work" in terms of employment equality legislation. The complainant states that the respondent misrepresented certain matters to him during his employment and that the alleged less favourable treatment of him did not become evident until the Hearing of his unfair dismissal claim at the Employment Appeals Tribunal in August, 2006. He submits that he is therefore entitled to avail of section 77(6) of the Acts in relation to the non-pay elements of his complaint. The respondent rejects the complainant's assertions in their entirety and further submits that (i) the complainant cannot rely on section 77(6) of the Acts and (ii) that the remuneration paid to the complainant and the named comparator is lawful in accordance with section 29(5) of the Acts.
2.2 The complainant referred two complaints under the Employment Equality Acts, 1998 and 2004 to the Equality Tribunal on 7 September, 2006 and 26 September, 2006 respectively. In accordance with her powers under the Acts the Director delegated the complaints to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaints commenced on 16 October, 2008 - the date the complaints were delegated to me. Submissions were received from both parties and Hearings on the matter took place on 8 January, 2009 and 25 August, 2009. A number of issues arose at the final Hearing which require further clarification and gave rise to correspondence between the parties until late November, 2009.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant was employed by the respondent from 9 July, 2001 until 31 August, 2005 - although the last day he attended at work was 31 May, 2005. He states that during his employment he was treated less favourably and harassed by the respondent on grounds of race - his Nepalese nationality. The complainant provided details of the alleged discriminatory treatment and harassment of him. The former focuses on his alleged promotion to the position of Director of IT Applications for Europe in December, 2003/January, 2004. The harassment element of his complaint is centred on behaviour attributed to his Line Manager. Details of this alleged behaviour was also furnished and the complainant stated that it continued throughout his period of employment. It took the form, inter alia, of unfair criticism of his use/command of English and keeping a dossier of the complainant - which the complainant contends contains false and inaccurate information about him. The complainant's victimisation claim concerns the alleged penalisation of him for having reported an issue about compliance connected with an internal procedure involving a colleague in November, 2004.
3.2 The complainant submits that he can rely on section 77(6) of the Acts as the respondent misrepresented certain information to him. In particular he states that his Line Manager confirmed he had been promoted in December, 2003/January, 2004 in the course of the complainant's Annual Review during March/April, 2004. He adds that it was only when personnel from the respondent gave evidence at the Hearing of his unfair dismissal complaint at the Employment Appeals Tribunal on 30 August, 2006 which contradicted this view, that he believed he was the victim of discriminatory treatment and referred his complaint to this Tribunal.
3.3 The complainant asserts that following his promotion in December, 2003/January, 2004 he did not receive the same level of stock options which the named Irish comparator received at that time. He also contends that he did not receive the same level of stock options and bonus as the comparator in 2005 although his contract provided for it. He states that he performs "like work" with the comparator in terms of section 7 of the Acts and submits therefore that he is entitled to those elements of the remuneration package. The complainant notes that the respondent rejects the assertion he was promoted with effect from 12 January, 2004. He submits that the respondent is estopped from adopting this position as the Employment Appeals Tribunal found (in determining whether or not he had been unfairly dismissed) that the complainant had been promoted in January, 2004.
3.4 The complainant contends that the performance appraisal process conducted in March, 2005 was discriminatory in that it did not acknowledge the full list of tasks he had completed during the year. In particular he points to the negative evaluation he received in respect of the Communications and Team Development criteria. He asserts that the poor rating he received in these areas is reflective of his Line Manager's predisposition to discriminate against him.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertions that he was treated less favourably and harassed by the respondent. Notwithstanding this it submits that the complainant cannot rely on section 77(6) of the Acts to bring the non-pay elements of his complaint within time. It submits that all of the alleged treatment of the complainant could only have occurred prior to 31 August, 2005 - the date his employment ceased. It adds that all of these alleged incidents were within the complainant's knowledge at that time and he decided not to refer a complaint to this Tribunal and exercised his statutory rights under unfair dismissal legislation instead. The respondent accepts that the complainant's Line Manager used the phrase "promoted" in the course of the complainant's Annual Review in March/April, 2004. However, this was an error on his part and it submits it could not be considered as constituting misrepresentation in terms of section 77(6) of the Acts. It further submits that the term "misrepresentation" should be interpreted in a similar fashion to that applied in contract law - that is a deliberate omission or false statement by a person with the intention of misleading another person. It adds that the complainant was not promoted in December, 2003/January, 2004 - he was instead transferred to a new position on the same basic pay and remuneration package with effect from 12 January, 2004. In this regard the respondent submitted a copy of the complainant's Revised Contract of Employment at that time.
4.2 The respondent accepts that the complainant and the named comparator perform "like work" in terms of section 7 of the Acts for the period of the claim - December, 2003 until August, 2005. It submits however that there are grounds unconnected with race which render the remuneration packages paid to the complainant and comparator lawful in accordance with section 29(5) of the Acts. The respondent states that the comparator received a stock option grant valued at $4,000 in June, 2004. This was to reflect his promotion to a position at Director level which had occurred in January of that year. The complainant was not promoted at that time - rather he was transferred to a new post - and he was not therefore entitled to a stock option grant at that time. The respondent states that the complainant received a similar stock option grant on his recruitment at Director level some years previously. The respondent states that in March, 2005 the complainant received an annual performance based stock option grant valued at $1,600 which represents 50% of the award available and is reflective of the "Below Expectations" rating the complainant received at that time. The comparator received an annual performance rated stock option grant valued at $3,200 which represents the full extent of the award available and is reflective of the "Fully Effective" rating the comparator received at that time. It submits therefore that the difference in the value of the stock options awarded to the complainant and comparator is related to factors unconnected with their nationalities and is in accordance with the reward scheme operated by the respondent at that time. Consequently, the respondent argues that the difference in the rates of remuneration paid to the complainant and comparator as regards this element of his complaint is lawful in accordance with section 29(5) of the Acts.
4.3 The respondent states that it operates a Bonus Payment Scheme for employees - payment of which is made in March of each year and is based on performance in the previous calendar year. It states that both complainant and the comparator are in the same Bonus Target Band and could achieve a maximum bonus of 20% of their respective salaries. It adds that in March, 2005 the complainant received a bonus of €9,200 - which represents 50% of the bonus available and is reflective of the "Below Expectations" rating he received at that time in respect of his performance in 2004. The comparator received €14,800 - which represents 100% of the bonus available and is reflective of the "Fully Effective" rating he received in respect of his performance in 2004. It submits therefore that the bonus available to both was the same - 20% of salary, that the complainant received the amount commensurate with his performance the previous year, as did the comparator and that there were objective reasons unconnected with the nationalities of the complainant and comparator which explain the difference in the amounts awarded. Consequently, the respondent argues that the difference in the rates of remuneration paid to the complainant and comparator as regards this element of his complaint, is also lawful in accordance with section 29(5) of the Acts.
4.4 The respondent rejects the assertion it is estopped from arguing that the complainant was not promoted with effect from 12 January, 2004. It submits that in order to give rise to an estoppel the issue in question must be identical to an issue decided in previous proceedings. It further submits it must also be shown that in the course of the previous proceedings the issue actually arose for decision and that it was necessarily determined by the Court (or Tribunal) as a matter fundamental to its decision. The respondent seeks to rely on the Decision of the Labour Court in John Cotter v Limerick VEC in respect of its arguments on this matter.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me are (i) whether or not the respondent acted in a manner which could be considered "misrepresentation" in terms of section 77(6) of the Employment Equality Acts, 1998 and 2004 and therefore enable the complainant to avail of the affect of that provision in respect of the non-pay elements of his complaint, (ii) if so, did the respondent discriminate against and/or harass the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to sections 8 and 14A respectively of those Acts, (iii) if so, did the respondent victimise the complainant in terms of section 74(2) of the Employment Equality Acts, 1998 and 2004 and (iv) are there grounds unconnected with the race (nationality) of the complainant and named comparator which render certain elements of the remuneration packages paid to them lawful in terms of section 29(5) of the Employment Equality Acts, 1998 and 2004. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.
5.2 It is common case that the complainant's employment with the respondent ceased on 31 August, 2005. It follows therefore that this date represents the last date on which any unlawful discriminatory treatment, harassment or victimisation of the complainant contrary to the Acts could arise . The complainant did not lodge his complaint within the (extended) period of twelve months from the last date of alleged discrimination/victimisation prescribed at section 77(5) of the Acts. Therefore the only avenue left open to him, in terms of this Tribunal having jurisdiction to investigate his complaint, is to avail of section 77(6) of the Acts. This provision provides as follows:
"Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection 5(a) shall be construed as if the reference to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant's notice."
The effect of the provision is that the timelimit for referring a complaint to this Tribunal, in circumstances where the respondent has engaged in any misrepresentation, only commences when the complainant becomes aware of that misrepresentation. In order to avail of the provision the complainant must satisfy this Tribunal, as a matter of probability, that the there was misrepresentation by the respondent and that the delay in referring his complaint is due to this misrepresentation.
5.3 The complainant contends that he was promoted in January, 2004. This is disputed by the respondent and the revised contract of employment signed by the complainant at that time clearly indicates that his appointment as Director of European IT Applications was a transfer of employment for him. The complainant states that notwithstanding this he raised the matter of promotion on a continuous basis with his Line Manager. It is also clear that in the course of his Annual Review in March/April, 2004 his Line Manager confirmed in writing that "recently Govind has been promoted to the European Applications role ..." - although the respondent submits this was done in error. The complainant states that this comment (representation) satisfied his concerns at that time - i.e. that he had been promoted. The standard by which the truth or falsity of a representation is judged is that if the discrepancy between the facts as represented and the actual facts is such as would be considered material by a reasonable person, the representation is false - i.e. is the statement one which would convey a false or wrong impression to a reasonable person. In the instant case it is accepted that the complainant's Line Manager indicated on the complainant's Annual Review Form that the complainant had been promoted. Whether this might have been in error or was a deliberate attempt by the Line Manager to effectively make the complainant cease pursuing the matter is irrelevant and I am satisfied that it constitutes a misrepresentation in terms of the Acts in that it resulted in the complainant having a false or wrong impression of the situation at the time.
5.4 I must now examine whether or not the delay on the complainant's part in referring his complaint to this Tribunal is due to this misrepresentation. The complainant must therefore satisfy this Tribunal, on the balance of probabilities, that the misrepresentation influenced him to the extent that he decided not to refer a complaint under the employment equality legislation in either 2004 or 2005 - the period the complainant asserts he was treated in a manner contrary to the Acts. In the course of my investigation the complainant stated that he (i) did not consider the alleged behaviour of his Line Manager discriminatory at the time - just unfair and unequal, (ii) that he had not contemplated referring a complaint to this Tribunal prior to his Line Manager's comments in March/April, 2004 which resulted, in turn, in him deciding to refrain from referring that complaint and (iii) although he considered the treatment unfair and unequal he had no evidence to substantiate his complaint until the EAT Hearing in later August, 2006 and he was unsure as to the veracity of any documents he had at that time. In addition to the foregoing, it is clear from the complainant's own evidence that the alleged harassment and victimisation of him continued to take place after the Line Manager's comments in March/April, 2004. It is difficult to see therefore how any misrepresentation by the respondent in March/April, 2004 could have contributed to the delay in referring those aspects of the complaint arising after that time, within the prescribed statutory timelimits. In light of my comments in this and the preceding paragraph I find that the complainant had failed to show, on the balance of probabilities, that the delay in referring his complaint to this Tribunal outside of the timelimits prescribed at section 77(5) of the Employment Equality Acts, 1998 and 2004 was due to misrepresentation by the respondent and he cannot therefore avail of section 77(6) of those Acts. It follows therefore that this Tribunal has no jurisdiction to investigate the non-pay elements of his complaint.
5.5 I will now look at the remaining element of the complainant's claim - that he is entitled to the same rate of remuneration as that paid by the respondent to a named Irish comparator as this aspect of his complaint is not subject to the timelimits prescribed at section 77(5) of the Acts. I note the respondent accepts that "like work" , in terms of section 7 of the Employment Equality Acts 1998 and 2004, existed between the complainant and comparator for the relevant period and that it relies on section 29(5) of those Acts to render the difference in remuneration lawful - a burden which it must discharge. Part of the respondent's argument in this regard is that the complainant was not promoted in January, 2004 - whereas the comparator was - and the complainant was not therefore entitled to the relevant stock option grant which the comparator received in June, 2004 as a result of that promotion. Before dealing with this issue I must address the complainant's submission that the respondent is estopped from advancing that argument in this Tribunal as the Employment Appeals Tribunal found (in determining whether or not he had been unfairly dismissed) that the complainant had been promoted in January, 2004. The Labour Court addressed the issue of estoppel in John Cotter v Limerick VEC . The Court stated (whilst adopting the principles established in Shaw v Sloan ) that "in order to give rise to an estoppel the issue in question must be identical to an issue decided in the previous proceedings. In addition, it must also be shown that in the previous proceedings the issue actually arose for decision and that it was necessarily determined by the Court [or tribunal] as a matter fundamental to its decision.". In the instant case the issue for decision by the Employment Appeals Tribunal in August, 2006 was whether or not the complainant's employment with the respondent was terminated in circumstances which were contrary to the unfair dismissal legislation. The issue of whether or not the complainant was promoted in January, 2004 was not an issue "necessarily determined by Tribunal as a matter fundamental to its decision" and I do not accept that the comment contained in that Tribunal's Determination satisfies the test that "the issue actually arose for decision" in those proceedings. Accordingly, I find that the respondent is not estopped from arguing in the course of these proceedings that the complainant was not promoted in January, 2004.
5.6 There are three aspects to the complainant's claim on this matter - (i) a share option grant following promotion in December, 2003/January, 2004 (paid in June of that year), (ii) a performance related share option grant in March, 2005 and (iii) a performance based bonus payment in March, 2005. The respondent states that the complainant was not entitled to the share option grant in June, 2004 because he was not promoted in January, 2004 - whereas the comparator was. Copies of the contracts signed by both the complainant and comparator at that time were furnished to this Tribunal. It is clear from these documents that the comparator was promoted whereas the complainant's contract expressly states that it constituted a transfer of employment and that his terms and rate of remuneration remained unchanged. In addition, contrary to the complainant's arguments on the matter, I cannot accept that the internal notice dated 18 December, 2003 (also furnished to the Tribunal) states that both he and the comparator were promoted - what it does say is that both he and the comparator are being appointed to new positions following a recent IT restructuring process. Finally, I note the complainant's Line Manager stated (as outlined at paragraph 5.3 above) that he had been promoted at that time - but I have found that this was a misrepresentation of the actual situation at that time - for whatever reason. I have carefully examined all the evidence adduced by the parties on this matter and I find, on balance, that the complainant was not promoted in January, 2004. The respondent's share option scheme provides that employees appointed to a position at Director level receive a share option grant valued at $4,000 on appointment. This is what the comparator received in June, 2004. The complainant was already a Director - he had previously held that title - and he had previously received a similar share option grant on his appointment to that level. It follows that in all of the circumstances he was not entitled to a further share option grant in January, 2004. I find therefore that the grant of the share option (valued at $4,000) to the comparator in June, 2004 was unconnected to the nationality of the complainant and comparator and is therefore lawful in accordance with section 29(5) of the Acts.
5.7 The remaining two elements of the complainant's equal pay claim concern a share grant option and bonus which were awarded in March, 2005 on the basis of performance in 2004. Copies of both the complainant's and comparator's Annual Review Form for 2004 were furnished to the Tribunal. The complainant was awarded an overall score of "Below Expectations" whereas the comparator received a overall score of "Fully Effective". In the course of the Hearing the complainant asserted that the assessment of him by his Line Manager was tainted by the latter's predisposition to discriminate against him. However, the complainant did not adduce any tangible evidence to support this assertion. Indeed, I note the complainant signed off on the Review Form without complaint at that time and that he did not utilise the respondent's internal Grievance Procedure on the matter. The respondent provided the Tribunal with a copy of its "Compensation Guidelines 2004/2005". This documentation indicates that an employee at the complainant's level who receives a "Below Expectations" overall Annual Review score can receive a maximum of 50% of the award available. The complainant received 50% of the awards available in respect of both the performance related elements - share grant option and bonus. The documentation also indicates that at the complainant's level - which was the same level as the comparator - an employee who receives a "Fully Effective" overall Annual Review score can receive a between 90% - 110% of the award available. The comparator received 100% of the award available which falls within that range. In light of the foregoing I find that there are grounds unconnected with the nationalities of the complainant and comparator which explain the difference in the rates of remuneration paid to them by the respondent and the difference is therefore lawful in terms of section 29(5) of the Employment Equality Acts, 1998 and 2004.
6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find -
(i) that the complainant had failed to show, on the balance of probabilities, that the delay in referring his complaint to this Tribunal outside of the timelimits prescribed at section 77(5) of the Employment Equality Acts, 1998 and 2004 was due to misrepresentation by the respondent. He cannot therefore avail of section 77(6) of those Acts and consequently this Tribunal has no jurisdiction to investigate the non-pay elements of his complaint.
(ii) that the difference in the rates of remuneration paid by the respondent to the complainant and a named comparator in June, 2004 and March, 2005 - in respect of share option grants and bonus - are lawful in accordance with section 29(5) of the Employment Equality Acts, 1998 and 2004.
_______________________________________
Vivian Jackson
Equality Officer
15 March, 2010