THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2010-185
PARTIES
Marius Sopis, Kestutis Kuzminskis & Evaldas Lengvinas
(represented by Richard Grogan
& Associates, Solicitors)
and
Kenneth Maher and Bridie Maher t/a
Ken Maher Building Contractors
File Reference: EE/2008/031
EE/2008/048
Date of Issue: 24th September, 2010
Headnotes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - race - conditions of employment - training - discriminatory dismissal - failure to establish a prima facie case of discrimination
1. Dispute
1.1 These cases concern complaints by Mr. Marius Sopis, Mr. Kestutis Kuzminskis and Mr. Evaldas Lengvinas, who are Lithuanian nationals, that they were discriminated against by Kenneth Maher and Bridie Maher t/a Ken Maher Building Contractors on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 in terms of conditions of employment, training, pay and in relation to discriminatory dismissal.
2. Background
2.1 Mr. Marius Sopis and Mr. Kestutis Kuzminskis referred complaints under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on 21st January, 2008 and Mr. Evaldas Lengvinas referred a complaint on 28th January, 2008. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the cases on 20th July, 2010 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 15th October, 2008. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 10th September, 2010.
3. Summary of the Complainants' case
3.1 Mr. Marius Sopis was employed by the respondent as a blocklayer from February, 2006 until November, 2007. Mr. Kestutis Kuzminskis was employed by the respondent as a labourer from November, 2006 until November, 2007. Mr. Evaldas Lengvinas was employed by the respondent as a blocklayer from May, 2006 until November, 2007. The complainants stated that there were a number of other employees of Portuguese, Lithuanian and Irish origin employed by the respondent as labourers/blocklayers during their respective periods of employment. The complainants stated that they received no written contract or terms of employment and they contended that this constitutes unlawful discrimination of them on the grounds of race contrary to the Acts. The complainants submitted that following the Decision of this Tribunal in 58 Complainants -v- Goode Concrete there is an obligation on an employer to provide employees with a written contract of employment in a language which they can understand. The complainants stated that they were not aware if the respondent had provided any of the other employees engaged at the same time as them with a contract of employment or other similar documentation.
3.2 The complainants submitted that the respondent failed to provide them with a health and safety statement or training even-though they were working in a potentially dangerous business. The complainants submitted that the respondent's failure to provide them with a health and safety statement in a language which they could understand amounts to discrimination within the meaning of the Acts. The complainants submitted 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 did not receive their holiday pay entitlements.
3.3 The complainants submitted that the respondent did not furnish them with any tax documentation, including a P45 or P60. The complainants claimed that the respondent failed to deduct any tax or social welfare contributions in respect of the remuneration they received during the course of their employment. It was submitted that this failure to deduct tax and social welfare contributions resulted in the complainants being unable to claim their social welfare entitlements. The complainants submitted that an Irish employee would have been aware of an employer's statutory obligation to make these deductions and would have insisted that his/her employer adhere to these statutory obligations. It was therefore submitted that the complainants, as non-Irish nationals, have been treated less favourably than an Irish national would have been in relation to this aspect of his employment. Mr. Marius Sopis also claimed that the respondent, Mr. Ken Maher, threatened to have him deported back to Lithuania when he requested his P45 and P60 following the termination of his employment.
3.4 The complainants claimed that they were dismissed from their employment by the respondent in November, 2007 after returning to work on a Monday following the weekend. The complainants claim that they were dismissed without any proper procedures and that they were informed by the respondent on the date of their dismissal that they were not needed anymore. The complainants stated that work on the site where they were employed continued for three months after they were dismissed and they also stated that a number of other workers of Lithuanian origin continued to work on this site for the respondent after their dismissal. The complainants claim that they were dismissed from their employment on the grounds of their nationality.
3.5 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. The respondent also failed to forward a written submission to the Tribunal regarding the alleged discrimination.
5. Conclusions of the Equality Officer
5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainants to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to them. If they succeed in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on these complaints, therefore, I must first consider whether the existence of a prima facie case has been established by the complainants. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where "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)....." Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows - "as between any 2 persons, ... that they are of different race, colour, nationality or national origins".
5.3 Accordingly, the issues for decision in this case is whether or not the respondent discriminated against and discriminatorily dismissed the complainants on the ground of their race contrary to the Employment Equality Acts. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
Conditions of Employment
5.4 Firstly, I will consider the issue that has been raised by the complainants in relation to the respondent's alleged failure to provide them with a written contract of employment and a health and safety statement/training in a language which they could understand which they contended constitutes unlawful discrimination of them on the grounds of race contrary to the Acts. The complainants submitted that the Decision of this Tribunal in 58 Complainants -v- Goode Concrete places an obligation on an employer to furnish non-Irish employees with a contract of employment/health and safety statement in a language which they understand. I am of the view that this is an incorrect interpretation of that Decision. In that case the Equality Officer found that in circumstances where an employer furnishes its employees with contracts of employment/health and safety statements it constitutes less favourable treatment of non-Irish employees if the respondent provides them with a contract of employment/health and safety statement in English and not in a language which they can understand.
5.5 In the present case, I note the complainants stated in evidence that there were workers of various nationalities employed as bricklayers/labourers by the respondent during their respective periods of employment, including those of Lithuanian, Portuguese and Irish origin. The complainants stated that they were not aware if the respondent had issued any of the other employees, including those of Irish origin, engaged at the same time as them with a written contract of employment or a health and safety statement/training. The complainants submitted that an 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 its obligations in terms of this aspect of their conditions of employment. 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.
5.6 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."
5.7 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 provision of a contract of employment and a health and safety statement/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. 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. I am therefore not satisfied that the complainants, in the present case, have adduced any evidence from which I could reasonably conclude that they were treated less favourably than other workers of a different nationality (including those of Irish origin) in terms of the respondent's failure to provide him with a written contract of employment and a health and safety statement/training. Accordingly, I find that the complainants have failed to establish a prima facie case of discrimination in relation to this element of their complaints.
5.8 The next issue raised by the complainants relates to the respondent's failure to pay them in accordance with the Registered Employment Agreement (REA), to join them to the Construction Workers' Pension and Sick Pay Scheme and to pay them their holiday pay entitlements. In considering these issues, I note that the complainants could not confirm whether or not the other employees (including those of Irish origin) engaged by the respondent during their respective periods of employment were paid in accordance with the REA, were joined to the CWP Scheme or if they had received their holiday pay entitlements. The only substantive evidence that the complainants could provide in support of this aspect of their complaint was that they were informed by the respondent that they should not discuss their rates of pay with the other workers which it employed. The complainants contended that this evidence was sufficient to raise an inference that they were being treated less favourably than their Irish counterparts in terms of their pay.
5.9 In considering this issue, I have taken cognisance of the Melbury decision where the Labour Court stated that "Knowledge of how the Complainant's fellow workers were treated is not exclusively or almost exclusively within the knowledge of the Respondent. Nor could it be said that it is peculiarly within the range of the Respondent's capacity of proof. It is also plainly within the knowledge of those other workers ....... If necessary those workers could have been required to attend as hearing and testify as to how they were treated".
5.10 In the present case, the complainants did not adduce any direct evidence from the Irish comparators which they allege were being paid a more favourable rate of pay. I am therefore satisfied that the complainants' evidence in relation to this issue is not sufficient to establish a fact from which discriminatory treatment can be inferred. Having regard to the evidence adduced, I am not satisfied that the complainants have established any facts from which it could be inferred that they were treated less favourably than other workers of a different nationality (including those of Irish origin) in relation to the aforementioned aspects of their conditions of employment. Accordingly, I find that the complainants have failed to establish a prima facie case of discrimination in relation to this element of their complaints.
5.11 The next issue that I must consider relates to the complainants' contention that the respondent failed to provide them with any tax documentation (including a P45 or P60) and that it failed to deduct tax or social welfare contributions in respect of the remuneration that they earned whilst in its employment. The complainants claim that the respondent was engaged in social welfare fraud and tax evasion which resulted in them having difficulties in claiming their social welfare entitlements upon the termination of their employment. The complainants submitted that this constitutes discriminatory treatment of them on the grounds of race contrary to the Acts on the basis that an Irish national would have been aware of an employer's statutory obligation to provide these tax documents and to make these deductions and therefore, would have insisted that his/her employer adhere to these statutory obligations.
5.12 In considering this issue, I would make the point that this Tribunal does not have any jurisdiction in relation to issues regarding the compliance or otherwise by an employer with its obligations under tax or social welfare legislation. I note that the complainants stated in evidence that they eventually received their P45's and P60's following their dismissals albeit that they encountered some difficulty in acquiring these documents from the respondent. The complainants could not confirm whether or not the other employees (including those of Irish origin) engaged by the respondent during their respective periods of employment were issued with tax documentation or if they had the appropriate tax and social welfare deductions taken from their remuneration by the respondent. Whilst I accept that the respondent may not have been very co-operative in terms of the complainants' requests to be furnished with their tax documentation, I am not satisfied that they have adduced any evidence to suggest that this treatment was in any way attributable to their nationality or that they were treated any less favourably than their Irish counterparts in this regard.
5.13 I have also noted Mr. Sopis' evidence that the respondent, Mr. Ken Maher, threatened to have him deported back to Lithuania when he requested his P45 and P60 following his dismissal. I am not satisfied that this evidence is sufficient to establish a fact from which discriminatory treatment could be inferred in terms of this aspect of Mr. Sopis' conditions of employment. Furthermore, I note that Mr. Sopis did not refer a complaint of harassment to the Tribunal within the meaning of section 14A of the Acts nor did he make any reference whatsoever to this incident in any of the documentation (i.e. either the Complaint Referral Form (EE.1) or the written submission) that he submitted to this Tribunal in support of the alleged discrimination in this case.
5.14 Having regard to the evidence adduced in the present case and in applying the reasoning of the Labour Court in the Melbury case, I am not satisfied that the complainants have established any facts from which it could be inferred that they were treated less favourably than other workers of a different nationality (i.e. those of Irish origin) in terms of the provision of tax documentation and tax and social welfare deductions. Accordingly, I find that the complainants have failed to establish a prima facie case of discrimination in relation to this element of their complaints.
Discriminatory Dismissal
5.15 The final issue that I must consider relates to the complainants' claim 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 procedures when they attended for work on a Monday morning in November, 2007. The complainants also stated that they were informed by the respondent, Mr. Ken Maher, on this date that there was no further work for them and they confirmed that a number of other workers of Lithuanian origin were retained in employment by the respondent on the site where they had been working following their dismissal.
5.16 In considering this issue, I accept the complainants' evidence that they were dismissed from their employment 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, especially in light of the fact that other workers of Lithuanian origin were retained in employment by the respondent following their respective dismissals. 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.
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 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 discriminate against the complainants 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
24th September, 2010