THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010-220
PARTIES
Aivaras Berzinis
(Represented by Richard Grogan & Associates, Solicitors)
-V-
Blueprint Construction Limited in Liquidation
File Reference: EE/2008/460
Date of Issue: 8th November 2010
Keywords
Employment Equality Acts 1998-2008, Section 6(1) - less favourable treatment , - Section 6(2)(h) - Race, Section 8- conditions of employment, Section 2(4) exclusion of remuneration from consideration under conditions of employment, Section 8(6) exclusion of remuneration from consideration as a term of employment, Sections 7, 19 and 29 - pay .
1. Dispute
1.1 This dispute concerns a claim by a complainant that he was discriminated against by the above named respondent on the race ground, in terms of Sections 6(1), and 6(2) (h) of the Employment Equality Acts 1998-2008 and contrary to section 8 of that Act. At the start of the hearing the complainant withdrew his complaints about discriminatory treatment in relation to conditions of employment (other than pay), training and dismissal. He said he was proceeding with a complaint of discriminatory treatment in relation to pay.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 7th July 2008 alleging that the respondent discriminated against him contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 12th October, 2010 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from the complainant on the 25th November 2008 and from the respondent on the 8th September 2008 . As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 13th October, 2010
3. Summary of the Complainant's Case
3.1 The complainant is a Lithuanian national and was employed from 5th February 2007 until 11th April 2008 by the respondent as a teleporter driver to work on building sites. The complainant said that there were 2 sites and there were about 30 Irish workers and 2 Lithuanian workers employed there. The complainant's case is that the respondent discriminated against him in relation to his pay in that he was not paid the Registered Employment Agreement rate for the job. He also said that he believed that an Irish worker who was doing the same job as he did was paid about €250 net per week more than he was. The complainant's employment came to an end in April 2008 and a referral was made on his behalf to the Right's Commissioner in respect of a number of matters in relation to his employment including a complaint about his rate of pay. A Right's Commissioner hearing was arranged for the 1st December 2008. Following negotiations between the parties all the complaints were resolved including the complaint about the complainant's rate of pay and he received a sum of money in respect of arrears of wages.
3.2 The complainant's solicitor submitted that the complainant was not pursuing an equal pay claim under the Act because he did no know the surname of the Irish person who worked alongside him. He said that the complaint relates solely to the fact that the complainant was not paid the Registered Employment Agreement rate and that he was paid considerably less per week than an Irish person doing the same job. He accepts that the pay complaint was the subject of a negotiated settlement. He submitted that the complainant was limited to 6 months arrears of wages and his client was in the employment for fourteen months and therefore he could not recoup the outstanding arrears. He submitted that there was no justifiable or objective reason for paying the Irish person more than the complainant and that it should be inferred from this fact and the fact that the respondent accepted that the complainant was paid less than the REA rate that discriminatory treatment on the race ground had occurred. He said that he was seeking compensation rather than equal pay because the complaint is about less favourable treatment in relation to the complainant's terms and conditions of employment in that there is no justification for paying the complainant less than the an Irish person.
4 Respondent's Case
4.1 The respondent company is in liquidation and they did not attend the hearing.. I am satisfied that the liquidator of the company was on notice of the complaint
In a submission to the Tribunal from the company solicitor it was submitted that the claim was settled and all the arrears of wages had been paid as well as a sum of money to represent damages.
5. Conclusions of the Equality Officer
5.1 The issues for decision in this case is whether or not the respondent discriminated against the complainant on the race ground, in terms of section 6(1) and 6(2)(h) of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts as regards pay and the application of the pay element of the REA for the construction industry. Section 6 of the Acts inter alia provides:
6. -- (1) "For the purposes of this Act and without prejudice to its
provisions relating to discrimination occurring in particular circumstances,
discrimination shall be taken to occur where --
(a) 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) (in this
Act referred to as the ''discriminatory grounds'') which --
(2) As between any 2 persons, the discriminatory grounds (and
the descriptions of those grounds for the purposes of this Act) are --
(h) that they are of different race, colour, nationality or ethnic
or national origins (in this Act referred to as ''the ground
of race''),"
5.2 I note that the complainants representative submits that the complainant is not pursuing an equal pay claim because he is unable to name a comparator and that the only claim he is pursuing is a claim of discriminatory treatment in relation to his conditions of employment. The only argument made to me in respect of the complainant's terms and conditions of employment concerned the rate of pay paid to the complainant compared to the rate of pay paid to an Irish person who did the same work as the complainant. He submits that because the respondent has acknowledged that the complainant was not paid the REA rates and by paying arrears of wages this is prima facie discrimination on the race ground.
5.3 I note that Section 8 of the Act provides that discrimination in specific areas includes:
8. -- (1) "In relation to --
(a) access to employment,
(b) conditions of employment,
(c) training or experience for or in relation to employment,
(d) promotion or re-grading, or
(e) classification of posts,
an employer shall not discriminate against an employee or prospective
employee and a provider of agency work shall not discriminate
against an agency worker."
and Section 8(6) provides:
"(6) Without prejudice to the generality of subsection (1), an
employer shall be taken to discriminate against an employee or prospective
employee in relation to conditions of employment if, on any
of the discriminatory grounds, the employer does not offer or afford
to that employee or prospective employee or to a class of persons of
whom he or she is one --
(a) the same terms of employment (other than remuneration
and pension rights),
(b) the same working conditions, and ....."
Section 2(1) defines remuneration as:
"''remuneration'', in relation to an employee, does not include pension
rights but, subject to that, includes any consideration, whether
in cash or in kind, which the employee receives, directly or indirectly,
from the employer in respect of the employment;"
and Section 2(4) provides:
(4) "In this Act a reference to ''conditions of employment'' does
not include remuneration or pension rights."
5.4 It is clear from the above mentioned sections 2(4) and 8(6)(a) that discrimination in relation to remuneration is specifically excluded from consideration as less favourable treatment in relation to terms and conditions of employment. The Acts provide that claims in relation to discrimination about remuneration should be pursued under Sections 7, 19 (in relation to gender), and 29 ( in relation to race and other grounds). These sections of the Acts provide the statutory basis for the consideration of complaints in relation to remuneration including the necessity to establish "like work" within the meaning of the Act between the complainant and a comparator. Therefore, I cannot consider any complaint about discrimination in relation to pay other than under these sections. The complainants representative specifically said that he was not pursuing a claim for equal pay because he could not name a comparator.
For the foregoing reasons, the complainant cannot establish a prima facie case of discrimination based on the race ground in relation to the terms or conditions of employment.
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. I find that the respondent did not discriminate against the complainant on the race ground pursuant to sections 6(1) and 6(2)(h) of the Acts in terms of his conditions of employment contrary to section 8 of the Acts.
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Marian Duffy
Equality Officer
8th November 2010