The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
DECISION NO. DEC-E2010-236
PARTIES
Olga Solovjova
(Represented by Richard Grogan & Associates)
AND
Whispers Entertainment Limited
File reference: EE/2008/555
Date of issue: 26 November 2010
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6, 14A & 74 - Race - Conditions of employment.
1. DISPUTE
1.1. This dispute concerns a claim by Ms Olga Solovjova that she was discriminated against by Whispers Entertainment Limited on the grounds of gender, marital status, family status and race contrary to section 6 of the Employment Equality Acts in relation to access to employment, training, conditions of employment and other contrary to section 8 of the Acts.
1.2. The complainant referred her claim to the Director of the Equality Tribunal on 18 August 2008 under the Employment Equality Acts. On 20 July 2010, in accordance with her powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. A submission was received from the complainant . In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 27 August 2010.
2. COMPLAINANT'S SUBMISSION
2.1. The complainant is Latvian and started working for the respondent as a lap dancer in Kilkenny at the end of January or beginning of February 2008 and left at the end of May or beginning of June 2008. She submits that she was normally paid on the basis of receiving 50% of money given for any dance. However, if she had to take a day off during the week or was late for work the respondent reduced this to 40%. After two months she asked to work in Waterford on alternate weeks but due to her family circumstances she refused to work in Waterford and consequently only received 40% for any dance.
2.2. On one particular week the complainant submits that she was due to receive €800 but the respondent told her that it was too much and deducted €250 for no reason.
2.3. The complainant submits that Irish lap dancers were receiving 50% of money given for any dance and they only worked on Fridays and Saturdays and were paid each day, whereas the complainant was paid weekly. Also the Irish employees kept all their tips whilst she asserts that she had to give 50% of her tips to the respondent. She also contends that the Irish dancers took breaks but she was not allowed to.
2.4. The complainant submits that she did not receive a contract of employment or health and safety training or documentation and she was not given any payslips.
2.5. The complainant submits that the difference in treatment between herself and the Irish employees amounts to discrimination on the grounds of race.
3. RESPONDENT'S SUBMISSION
The respondent did not engage with the Equality Tribunal and consequently did not make a written submission regarding the alleged discrimination and did not attend at the hearing.
4. FINDINGS & CONCLUSION
4.1. At the start of the hearing the complainant withdrew her claim in relation to access to employment and training and withdrew the claim on the grounds of gender, marital status and family status. Therefore, I have to decide if the complainant was discriminated against in relation to conditions of employment and other on the grounds of race. 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.
4.2. Section 85A (1) of the Employment Equality Acts, 1998 - 2007 states: "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 means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. Further, in a recent Determination the Labour Court², whilst examining the circumstances in which the probative burden of proof operates held as follows -
"Section 85A of the Acts 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."
4.3. In this case the complainant has asserted that she was treated differently from Irish employees doing the same job. The respondent did not engage with the Tribunal and appears to have gone out of business, as all correspondence was returned "gone away". Therefore I have heard no evidence from the respondent to rebut the assertions made by the complainant.
4.4. The complainant has provided no evidence to support her assertions, except that she spoke to the Irish employees who confirmed the differences in treatment. However, none of them were asked to give evidence at the hearing. Nor were any of the complainant's colleagues from different countries who the complainant alleges were treated the same as she was.
4.5. I am therefore being asked to make a decision based on the uncorroborated evidence of the complainant. I have no reason to disbelieve the evidence of the complainant but in the absence of any supporting evidence I find it insufficient to allow me to find that she was treated in a discriminatory manner.
5. DECISION
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that the respondent did not discriminate against the complainant in relation to conditions of employment or other.
____________________
Hugh Lonsdale
Equality Officer
26 November 2010
¹ Labour Court Determination Arturs Valpeters v Melbury Developments Ltd EDA0917 [2010] 21 E.L.R