FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : TOKER DEVELOPMENTS LIMITED - AND - EDGARS GRODS (REPRESENTED BY CHRISTINA RYAN B.L. INSTRUCTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal under Section 83 of The Employment Equality Acts, 1998 to 2008
BACKGROUND:
2. The worker appealed the Equality Officer's decision to the Labour Court on the 9th June, 2009. The following is the Court's determination:
DETERMINATION:
This is an appeal by Edgars Grods (hereafter the Claimant) against the Decision of the Equality Tribunal in his claim of discrimination, harassment and victimisation against Toker Developments Limited (hereafter the Respondent). The claim was taken under the Employment Equality Acts 1998-2008 and the discrimination complained of is alleged to have occurred on grounds of the Complainant’s race. It is further alleged that the Complainant was both harassed and victimised by the Respondent when it failed to offer him re-employment because he had initiated the within complaint.
The claims were heard by an Equality Officer of the Equality Tribunal who found that the Complainant had not suffered discrimination or harassment as alleged. The Equality Officer did find that the Respondent had victimised the Complainant and awarded him compensation in the amount of €1,000 by way of redress.
The Complainant appealed against the dismissal of his discrimination claim and against the quantum of compensation awarded in his victimisation claim. The claim of harassment, which had been pursued unsuccessfully at first instance, was not pursued in the appeal. The Respondent did not cross-appeal against any aspect of the Equality Officer’s decision.
The Complainant was represented by Ms Christina Ryan B.L. instructed by Richard Grogan & Associates, Solicitors. The Respondent was represented by Mr Paul Hyland.
The facts
The material facts of the case are more fully set out in the decision of the Equality Officer. For the purposes of this Determination the pertinent facts, as admitted or as found by the Court, can be summarised as follows: -
The Complainant is of Latvian nationality. He worked for the Respondent from 11th July 2005 until 10th February 2006, when his employment terminated. The Respondent carried on business as a sub-contractor in the Construction Industry and employed the Complainant as a Steel Fixer.
The Respondent’s workforce was made up of persons of different nationalities. At the time material to these claims there were no Irish workers employed by the Respondent although the Respondent’s representative told the Court that it had employed Irish nationals in the past.
The Respondent’s pay determination system is based on the terms of the Registered Employment Agreement for the Construction Industry (the REA) but is adapted by considerations relating to the experience and skills of individuals. The Respondent also had regard to ability to communicate in the English language in deciding on the pay of certain individuals.
By application of the above criteria there were some variations between the Complainant’s pay and that of others with whom he was engaged in like work. In some cases the Complainant was paid less than others and in some cases he was paid more.
The Complainant also contends that the Respondent contravened his rights under employment legislation and under the terms of the REA. However, since this is a complaint under the Employment Equality Acts 1998-2008, these matters are not before the Court except to the extent that it is alleged that the contraventions arose from the Complainant’s race or nationality.
After the Complainant was dismissed in circumstances of redundancy he sought re-employment with the Respondent. The Respondent refused to consider him for re-employment and gave as a reason the fact that the Complainant had referred the within complaints to the Equality Tribunal.
The Position of the Parties
The Complainant contends that he was paid less than others of a different nationality in contravention of the Act. It was also contended that he was treated less favourably than others of a different nationality in respect of his conditions of employment and that this too constituted unlawful discrimination. Finally, the Complainant contends that the quantum of compensation awarded to him for the act of victimisation found to have occurred is inadequate.
Central to the Complainant’s case is a contention that in considering if unlawful discrimination occurred the Court should have regard to how a hypothetical comparator of Irish nationality would have been treated in comparable circumstances.
The Respondent denied that any discrimination on grounds of nationality occurred. The Principal of the Respondent told the Court that the starting point in his pay determination system was that the basic construction rates would be paid and thereafter adjustments were made for skills and experience. He said that some workers had better English than others and this allowed them to be more efficient in carrying out instructions and providing translation services for others. Those who had good language skills received some additional payments.
The Principal of the Respondent also told the Court that all employees were treated equally in respect to conditions of employment other than pay.
Conclusions of the Court
The Court first considered the submissions advanced on behalf of the Complainant to the effect that the Court should consider his case by reference to how a hypothetical comparator of Irish nationality would have been treated. In so far as the claim relates to pay, the High Court has decided, inBrides v Minister for Agriculture[1998] ELR 125, that a real as opposed to a hypothetical comparator is required. No reason was advanced as to why this authority should not be followed. In so far as the actual comparators referred to are concerned, it is evident from the pay records opened to the Court that some employees of the Respondent were paid marginally more than the Complainant while others were paid marginally less. There is nothing to suggest that the nationality of those workers was a factor in determining their pay.
In so far as the Respondent accepts that linguistic skills was taken into account in paying some employees more than the Complainant, the Court cannot accept that this is discriminatory in and of itself. Those who received such additional payments were in the same relevant position as the Complainant in that English was not their native language. There is nothing to suggest that a requirement to communicate in English put persons of Latvian nationality at a particular disadvantage relative to persons of the same nationality as those who received additional payment.
Moreover, there is authority for the proposition that the mere fact of a difference in status (in this case race) and a difference in treatment is in itself insufficient to shift the probative burden (see the Judgment of the Court of Appeal for England and Wales to that effect inMadarassy v Nomura International plc,[2007] IRLR 246). There is nothing in the facts of this case from which it could be inferred that any difference which may have existed in the treatment of the Complainant, relative to others employed by the Respondent, was in any way related to race or nationality.
Finally, the Court has considered the submissions advanced on behalf of the Complainant to the effect that in considering this case regard should be had to how a hypothetical comparator of Irish nationality would have been treated by the Respondent. It is settled law that in cases of equal treatment a hypothetical comparator can be relied upon but only where there is some evidential basis upon which it could be concluded that such a comparator would have been treated more favourably in the circumstances of the particular case. No such evidence was adduced and it would clearly be impermissible for the Court reach conclusions of fact based upon mere supposition or speculation.
Having regard to all of the considerations set out above, and taking the case advanced on behalf of the Complainant at its height, the Court cannot identify any facts from which it could be infer that the Complainant was subjected to unlawful discrimination. Accordingly, the Complainant cannot succeed.
Victimisation
The act of victimisation complained of is admitted and the only issue before the Court is the adequacy of the compensation awarded. In the Court’s view the award is inadequate and ought to be varied to one of €2,500.
Determination
The decision of the Equality Tribunal is affirmed subject to the award of compensation for victimisation being varied to one of €2,500.
Signed on behalf of the Labour Court
Kevin Duffy
17th May, 2010______________________
CONChairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.