EDA107

Background

The Complainant is Irish and is not a member of the Traveller community. He was employed by the respondent as a general operative, in a variety of positions, between September, 2003 and October, 2006. He contends that at various times during his period of employment he performed “like work” in terms of section 7 of the Employment Equality Acts, 1998 and 2008 with nine named comparators. He further claimed before the Equality Officer that he was harassed by the respondent on grounds of membership of the Traveller Community contrary to section 14 of the Acts. However he did not pursue this aspect of his claim in the appeal. He further contends that he was discriminated against in terms of his conditions of employment and that he was constructively dismissed in circumstances amounting to discrimination on grounds of race contrary to section 77 of those Acts.

The Respondent denies all of the claims made by the Complainant.

Having conducted an investigation of the claims, and having undertaken an inspection of the work in which the Complainant and his name comparators were engaged the Equality Officer found as follows: -

• I have completed my investigation of this complaint and issue the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that -
  
  
  (i) the complainant performed “like work” in terms of section 7 of the Acts with two named comparators who were members of the Traveller Community during his period of employment in the respondent’s Loading Area. The complainant is therefore entitled to the same rate of remuneration as paid to those comparators for the period when that differential existed in accordance with section 29 of the Acts. I order, in accordance with section 82(1) of the Acts, that the respondent pay the complaint the appropriate arrears of remuneration for the period when the differential existed. Arrears of remuneration are subject to the tax code.
  
  (ii) the complainant performed “like work” in terms of section 7 of the Acts with a named comparator who was a different nationality to the complainant during his period of employment in the respondent’s T&G Area. The complainant is therefore entitled to the same rate of remuneration as paid to that comparator for the period when that differential existed in accordance with section 29 of the Acts. I order, in accordance with section 82(1) of the Acts, that the respondent pay the complaint the appropriate arrears of remuneration for the period when the differential existed (April-October, 2005). Arrears of remuneration are subject to the tax code.
  
  (iii) the complainant has failed to establish aprima faciecase of discrimination on grounds of race and membership of the Traveller Community and his complaint cannot succeed.
  
  (iv) the complainant has failed to establish a prima facie case of harassment on grounds of membership of the Traveller Community and his complaint cannot succeed.
  
  (v) the complainant has failed to establish aprima faciecase of discriminatory dismissal on grounds of race and his complaint cannot succeed.

The position of the parties

The positions adopted by the parties in this appeal can be summarised as follows: -

The Complainant

The Complainant told the Court that he was initially employed by the Respondent in September 2003 and worked in the loading area with two others who were settled members of the Traveller community. Initially they were each paid at the rate of €7.50 per hour. In or about January 2004 the two colleagues who are members of the Traveller community (and who are his comparators for the purpose of this aspect of his equal pay claim) had their pay increased to €8.00 per hour. The Complainant’s pay was not similarly increased. It is admitted that the Complainant and his comparators were engaged in like work.

The Complainant contends that he was subsequently assigned to work in the Respondent’s T&G area. He claims that he was engaged in like work with a two others, neither of whom was Irish, but was paid a lower rate of pay.

The complaint of harassment was not pursued in the appeal.

The Complainant’s claim of discriminatory treatment and constructive dismissal was summarised by the Equality Officer as follows: -

• “The complainant states that following a formal appraisal of him in July, 2005, Mr. Howard (Section Manager) commented that the complainant “needs to be more outgoing and take more of a part in the motivation of the people around him – Eamon has more experience” on the Appraisal Form. The complainant asserts that Mr. Howard placed pressure on him to play a motivational role and that this constitutes less favourable treatment of him on grounds of race contrary to the Acts. He adds that he was a General Operative, the same as his fellow employees and he could not understand how he could motivate them.
  
  The complainant states that he was tricked by Mr. Howard in late 2005 into transferring to the Laydown Area on the premise that he would receive more money. The complainant asserts that this was a ploy on the part of Mr. Howard in order to get him to change from day to shift hours. He states that he approached the Production Manager shortly after being assigned to the Head 2 Operator role in the Laydown Area and told him he felt he was not “cut out” for the job. The complainant states that whilst the Production Manager was sympathetic towards him he told him that “if he did not stick with the job he may be without work”. The complainant adds that whilst he was assigned to the role of Head 2 Operator in the Laydown Area he was expected to train up on the Head 1 Operator role. He contends that this was not the same process applied to Mr. Kozuch, who was free to train without having the Head 2 responsibilities simultaneously. The complainant contends this constitutes less favourable treatment of him on grounds of race contrary to the Acts.
  
  The complainant states that on 14 September, 2006 he was asked by the Production Manager to train a colleague on the Head 2 role. The complainant refused to do so, on the basis that it was not part of his job description and he felt that if additional tasks were assigned to him he should receive extra money. He adds that he requested a meeting with Management to discuss this issue and when he heard nothing a couple of weeks later he resigned on 25 September, 2005. The complainant states that he attended meetings with Management on 27 and 29 September, 2006 but the matter could not be resolved and his employment subsequently terminated. The complainant states that this was the final straw for him. He believed he was being discriminated against because he was Irish, that the respondent preferred to engage non-Irish employees and he felt he had no option but to resign. The complainant submits that this constitutes constructive discriminatory dismissal on grounds of race contrary to the Acts.

The Respondent

The Respondent contends that the failure to increase the Complainant’s pay in line with that of his comparators who are members of the Traveller community was due to an oversight. The Respondent contends that the non-Irish comparators nominated by the Complainant were paid additional remuneration because he was assigned to a supervisory position. However the Respondent is not disputing the Equality Officer’s findings in relation to equal pay.

At the hearing before the Equality Officer the Respondent agreed to pay the Complainant an amount equal to the difference in pay between him and his comparators with whom he was found to have been engaged in like work and proffered to the Complainant a cheque in the amount involved. The Complainant refused to accept this payment because it was offered without admission of liability in respect of discriminatory treatment.

The Respondent denies that the Complainant was subjected to discriminatory treatment or that he was constructively dismissed.

Conclusion

Discriminatory treatment

The Court first considered if the Complainant has established aprima faciecase of discrimination in respect of any of the matters relied upon.

Section 85A of the Act provides that where facts are established from which discrimination may be inferred the probative burden of establishing that the principle of equal treatment has not been infringed rests on the Respondent. It is well established in the jurisprudence of this Court that the burden of proving the primary facts on which an inference of discrimination is contended for rests on the Complainant and that if that initial burden is not discharged the Complainant cannot succeed.

In the instant case the Complainant relies on the difference in treatment of which he complains and the difference in status and nationality vis-�-vis his comparators to raise an inference of unlawful discrimination. There is authority for the proposition that the mere fact of a difference in status (in this case race and / or non-membership of the Traveller community) 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). On the fact of the instance case that proposition is particularly apt.

It is a notorious fact that domestic equality legislation and the Directives upon which it is based, were enacted to protect groups within society who were historically subjected to discriminatory treatment. Thus, where a member of the Traveller community, or a person who is part of an ethnic minority, is treated less favourably than a member of the settled community or a person of Irish nationality, a degree of nexus may readily be inferred between the status of the person and the less favourable treatment. However, where, as in the instant case, the converse is contended for no such inference can automatically be drawn. In such cases the Court must look for some discernable connection between the impugned treatment and the status or nationality of the Complainant.

The Court has taken account of the Complainant’s submissions regarding the change in the proportion of Irish workers relative to non-Irish workers engaged by the Respondent over the period of his employment. However the Court cannot discern any connection between this change in the relative numbers in each category and the matters upon which his claim of discrimination on grounds of his race are grounded.

Taking the Complainant’s case at its height there is not a scintilla of evidence to connect the treatment of which he complains with either the fact that he is not a member of the Traveller community or that he is Irish.

Equal pay

In relation to the Complainant’s equal pay claim, the Court accepts that the difference in pay complained of vis-á-vis members of the Traveller community was due to an error on the part of the Respondent. In relation to the claim for equal pay against one of the non-Irish comparators, the Respondent accepts the decision of the Equality Officer. The Respondent has admitted liability for the payment of arrears and has proffered payment of arrears which the Complainant has refused to accept. There is, therefore, no justiciable dispute between the parties on this aspect of the claim. In relation to the other comparator with whom the Complainant was found not be have been engaged in like work, no evidence was adduced to cast doubt on the accuracy of the Equality Officer evaluation of the work of the Complainant relative to that of this comparator.

Constructive dismissal

In relation to the claim of constructive dismissal the Court can see no basis upon which this complaint could be sustained.

Determination

For all of the reasons set out above the Court finds the within appeal unsustainable and it is disallowed. The decision of the Equality tribunal is affirmed.






Signed on behalf of the Labour Court



Kevin Duffy
27th May 2010______________________
SCChairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.