THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2010-023
PARTIES
Mr. Vladislavs Persenkovs and Mr. Nikolajs Nemnasevs
(represented by Richard Grogan
& Associates, Solicitors)
and
Grieve Construction Limited
File Reference: EE/2007/307
EE/2007/333
Date of Issue: 8th March, 2010
Headnotes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - race - conditions of employment - training - harassment - discriminatory dismissal - claim in relation to a collective agreement - failure to establish a prima facie case of discrimination
1. Dispute
1.1 This case concerns a complaint by Mr. Vladislavs Persenkovs and Mr. Nikolajs Nemnasevs, who are Latvian nationals, that they were discriminated against by Grieve Construction Limited on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 in terms of access to employment, conditions of employment, training, harassment, discriminatory dismissal and in relation to a collective agreement.
2. Background
2.1 Mr. Vladislavs Persenkovs referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on 2nd July, 2007 and Mr. Nikolajs Nemnasevs referred a complaint on 18th June, 2007. In accordance with her powers under section 75 of the Employment Equality Acts, the Director delegated the cases on 21st July, 2009 to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2008. This is the date I commenced my investigation. A written submission was received from the complainants on 7th November, 2008. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 25th February, 2010.
3. Summary of the Complainants' case
3.1 Mr. Vlaidslavs Persenkovs was employed by the respondent as a labourer/bricklayer from May, 2004 until 20th March, 2007. Mr. Nikolajs Nemnasevs was employed by the respondent as a bricklayer from February, 2003 until 20th March, 2007. The complainants stated that there were a number of other employees of Polish, Lithuanian and Latvian origin employed by the respondent as labourers/bricklayers during their periods of employment. The complainants stated that the respondent did not employ any employees of Irish origin during their respective periods of employment. The complainants submitted that they did not receive a written contract of employment or any health and safety documentation or training in relation to their employment. They also claimed that they were not paid in accordance with Registered Employment Agreement (REA) for the Construction Industry and that they had not been joined to the Construction Workers Pension and Sick Pay Scheme as is required by the REA. The complainants also stated that they were not afforded proper breaks or rest periods by the respondent during the course of their working day whilst in the employment of the respondent.
3.2 Mr. Persenkovs and Mr. Nemnasevs stated that their employment was terminated on 20th March, 2007 when they refused to accede to their employer's request to work for an extra hour (after 5 p.m.) without any additional pay. The complainants submitted that they were dismissed without any proper reason or procedures. Mr. Persenkovs stated that he had been dismissed by the respondent on a number of occasions prior to this date but that he had been taken back to work on each of these previous occasions. The complainants claim that they were discriminatorily dismissed by the respondent on the grounds of their nationality.
3.3 Mr. Persenkovs and Mr. Nemnasevs stated that their employer frequently shouted at them on site during the course of their employment in an attempt to force them to increase their work output. They stated that they also had to endure very poor working conditions on site which included working in wet and mucky conditions and no proper access to sanitary facilities. The complainants submitted that this amounted to harassment contrary to the Employment Equality Acts.
3.4 The complainants also referred to a number of cases in support of his case, including Campbell Catering Ltd. -v- Rasaq (EED048), 58 Complainants -v- Goode Concrete (DEC-E2008-020), Khumalo -v- Cleary & Doyle Limited (DEC-E2008-003), Golovan -v- Porturlin Shellfish Limited (DEC-E2008-032) and Ning Ning Zhang -v- Towner Trading t/a Spar Drimnagh (DEC-E2008-001).
4. Summary of the Respondent's case
4.1 The respondent did not attend, nor was it represented at the Hearing of the complaints, in fact it did not engage with the Tribunal at any level following the referral of the present complaints.
5. Conclusions of the Equality Officer
5.1 At the outset of the hearing of the complaints, the complainants' representative withdrew the complaints relating to a claim in respect of a collective agreement. Accordingly, the issues for decision in this case is whether or not the respondent discriminated against the complainants on the grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts as regards their conditions of employment, training and discriminatory dismissal. I must also decide if the complainants were subjected to harassment on the grounds of race contrary to section 14A of those Acts.
5.2 Section 85A of the Employment Equality Acts, 1998 to 2008 provides as follows: "(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary". This requires the Complainants to prove the primary facts upon which they rely in seeking to raise an inference of discrimination. It is only when they have discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. If the complainants do not discharge the initial probative burden required of them their cases cannot succeed. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.3 Firstly, I will consider the issues that have been raised by the complainants in relation to their conditions of employment and training which they have contended constitutes unlawful discrimination of them on the grounds of race contrary to the Acts, namely:
- the respondent's failure to provide them a written contract of employment and a health and safety statement/training in a language which they could understand.
- that they were not paid in accordance with Registered Employment Agreement (REA) for the Construction Industry and that they had not been joined to the Construction Workers Pension and Sick Pay Scheme as is required by the REA.
- they were not afforded proper rest periods or breaks during the course of the working day during their periods of employment.
5.4 In considering these issues, I note that the complainants stated in evidence that there were workers of various nationalities employed as bricklayers by the respondent at that time, including those of Latvian, Polish and Lithuanian origin. The complainants have stated that they were not aware if the respondent had issued any of the other employees engaged at the same time as them with a written contract of employment or a health and safety statement/training. Neither could they confirm if any of the other employees were paid in accordance with the REA for the Construction Industry or if they had been joined to the Construction Workers Pension and Sick Pay Scheme as is required by the REA. The complainants also stated that the respondent did not employ any bricklayers (or other workers) of Irish origin during their respective periods of employment; however, they submitted that a notional Irish employee would have been aware of his/her rights under both employment and health and safety legislation, and therefore, would have insisted that the respondent comply with it's obligations in terms of this aspect of their conditions of employment and training. It was therefore submitted that the Tribunal should infer that the complainants have been subjected to less favourable treatment on the grounds of their nationality and accordingly, that the burden of proof should shift to the respondent to rebut the inference of discrimination.
5.5 In considering this issue, I have taken cognisance of the recent determination of the Labour Court in the case of Melbury Developments Limited and Valpeters . In that case the Labour Court stated, inter alia, that:
"Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
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."
5.6 In the present case, I accept that the complainants have adduced evidence to suggest that they may have been treated badly by the respondent in terms of the aforementioned elements of their conditions of employment and training. However, I do not have any jurisdiction to decide whether or not the respondent was in breach of it's obligations under the relevant employment and/or health and safety legislation. Whilst I appreciate that an employer who employs non-Irish nationals cannot presume to defend itself from discrimination by simply claiming that it 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. Having regard to the determination of the Labour Court in the Melbury case, I am satisfied that unfavourable treatment, in the absence of evidence of less favourable treatment, is insufficient to establish a prima facie case of discrimination under the Employment Equality Acts. Accordingly, the complainants must be able to demonstrate some significant evidence of less favourable treatment and this treatment must be linked to their nationality in order to raise an inference of discrimination.
5.7 Having regard to the totality of the evidence adduced in the present case, I am not satisfied that the complainants have adduced any evidence from which I could reasonably conclude that they were treated less favourably than an Irish person would have been, in similar circumstances, in relation to the aforementioned aspects of the conditions of employment and training. Accordingly, I find that the complainants have failed to establish a prima facie case of discrimination in relation to these elements of their complaints.
5.8 The next element of the complainants' claim concerns the allegations that they were subjected to a discriminatory dismissal by the respondent on the grounds of their race. The complainants stated in evidence that they were dismissed by the respondent without any proper reason or procedure on 20th March, 2007 as a result of their refusal to work for an extra hour (after 5 p.m.) without additional pay. Both of the complainants confirmed that a number of other employees of Latvian and Lithuanian origin were also dismissed on this date. In considering this issue, I accept the complainants' evidence that they were dismissed on this date. However, I am not satisfied that they have adduced any evidence to substantiate their claims that they were dismissed because of their nationality. Having regard to the determination of the Labour Court in the Melbury case, I am satisfied that in order to raise an inference of discrimination on the grounds of nationality, the complainants must be able to demonstrate some significant evidence of less favourable treatment and this treatment must be linked to their nationality. Based on the totality of the evidence adduced in the present case, I am not satisfied that the complainants have adduced any evidence from which I could reasonably conclude that the termination of their employment was in any way influenced by their nationality. Accordingly, I find that the complainants have failed to establish a prima facie case of discrimination in relation to dismissal on the grounds of their race.
5.9 The final issue that I must consider concerns the complainants' claim that they were subjected to harassment by the respondent on the grounds of their race. The complainants stated in evidence that their employer frequently shouted at them on site during the course of their employment in an attempt to force them to increase their work output. They also stated that they were forced to endure very poor working conditions on site which included working in wet and mucky conditions and no proper access to sanitary facilities. In considering this issue, I note that the complainants did not adduce any evidence to suggest that the abusive behaviour to which they were allegedly subjected by their employer or the poor working conditions on site was in any way connected to their nationality. Accordingly, I find that the complainants have failed to establish a prima facie case of harassment on the grounds of their race.
6. Decision
6.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
(i) the respondent did not discriminate against the complainants, Mr. Vladislavs Persenkovs and Mr. Nikolajs Nemnasevs, on the race ground pursuant to section 6(2) of the Acts in terms of their conditions of employment and training contrary to section 8(1) of the Acts.
(ii) the respondent did not subject the complainants, Mr. Vladislavs Persenkovs and Mr. Nikolajs Nemnasevs, to harassment contrary to section 14A of the Acts.
(iii) the respondent did not discriminate against Mr. Vladislavs Persenkovs and Mr. Nikolajs Nemnasevs on the race ground pursuant to section 6(2)(h) of the Acts, in respect of discriminatory dismissal contrary to section 8(6) of the Acts Accordingly, I find in favour of the respondent in this matter.
______________
Enda Murphy
Equality Officer
8th March, 2010