THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011 - 151
PARTIES
Mr. Tomas Petrauskas
(represented by Richard Grogan & Associates, Solicitors)
and
Wyebridge Company Limited
File Reference: EE/2008/752
Date of Issue: 17th August, 2011
Keywords:
Employment Equality Acts, 1998 & 2008, Section 6 and 8, - Section 6(2)(h), race ground - Section 8(i)(b), conditions of employment - circumstances in which notional comparator will be considered - additional cost on foreign nationals.
1. Dispute
1.1 This case concerns a complaint by Mr. Tomas Petrauskas that he was discriminated against by Wyebridge Company Limited on the ground of race contrary to section 6(2)(h) of the Employment Equality Acts in relation to discriminatory treatment, conditions of employment.
2. Delegation of the complaint
2.1 Mr. Tomas Petrauskas referred a complaint under the Employment Equality Acts, 1998 to 2008 to the Director of the Equality Tribunal on the 11th November 2008. In accordance with his powers under section 75 of the Acts, the Director then delegated the case to me, James Kelly, an Equality Officer on the 23rd May 2011, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Accordingly, this is the date I commenced my investigation. A written submission was received from both the complainant and from the respondent. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to a hearing of the case on the 3rd June 2011.
3. Summary of the Complainant's case
3.1 Mr. Petrauskas claims that he moved to Ireland in December 2006 and was employed by the respondent as a driver from 30th April 2007 until September 2008. He stated that there were a number of other employees from Lithuania and Poland employed by the respondent as drivers during his period of employment. He claims that there were no Irish drivers employed at that time.
3.2 Mr. Petrauskas claims that he did not receive a written contract of employment. However, he was unaware if any of the other employees received contracts of employment either.
3.3. Mr. Petrauskas claims that he was told by the owner of the company that he would have to take a driving test after starting. He claims that he was told that it was a requirement that all non-Irish workers were required to take the test and this stipulation was placed on the respondent by its insurance company. He understood that if the foreign national drivers passed the driving test it reduced the cost of insurance for the respondent. He took the driving test about a week after starting work with the respondent. He claims that he passed the test and nothing more was made of this after that. He claims that he sometimes worked long hours but he did not have any problems while working there. The complainant claims that he worked approximately one and half years for the respondent in total.
3.4 The complainant claims that he received another job offer and decided to give notice to the respondent that he was to leave work. He claims that when he went to collect his final pay package in September 2008 he noticed that €370 was missing. He claims that he contacted the owner and asked for an explanation for the deduction. He claims he was told that it cost the respondent that amount of money to conduct the driving test, back in May 2007, and that he now owed that money back. He claims that he was never told about this when he started and it was unfair and discriminatory.
3.5 Mr. Petrauskas's legal representative claims that the driving test was only a requirement for foreign nationals and that the complainant has no problem with that requirement per se. However, he claims that the cost of the driving-test is a cost which the respondent should pay and he understood that this was in some way off set against the respondent being able to avail of cheaper insurance costs once its foreign national drivers passed this test. He claims that imposing the cost of the test on the foreign national driver is a discriminatory practice, which he claims "is similar to an employer passing on the cost of a work permit to an employee", which he claims is entirely unfair.
3.6 The complainant has stated that as there is no Irish comparator, in this case, that he would ask the Equality Tribunal to consider a notional Irish comparator. He claims that such a comparator would not have had the same conditions of employment imposed on him/her.
4. Summary of the Respondent's case
4.1 The respondent was not in attendance on the day of the hearing.
4.2 The respondent's legal representative did furnish a brief submission where it stated that "it is a prerequisite in respect of any non national that they go through the procedure of being vetted by the insurance company" and that the cost of this test was €370.00. It claims that this is a normal procedure. The letter reads that "On leaving employment [the respondent] deducted a sum of €370.00 being the amount which was paid by [the respondent] for the purposes of having the necessary test carried out to comply with insurance regulations. The sum as deducted was strictly for the hire of the lorry, diesel and incidental costs referable to same"
4.3 The respondent's legal representative came off record for the respondent on receipt of notification of the hearing from the Equality Tribunal. Notification of the hearing was then sent directly to the respondent by registered and ordinary post.
5. Conclusions of the Equality Officer
5.1 Section 85A of the Acts sets out the burden of proof which applies in a claim of discrimination. In the first instance, it requires the complainant to establish facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that 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. Therefore, in deciding on this complaint, I must first consider whether the existence of a prima facie case has been established by the complainant. 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 Acts 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 ground of race as being "as between any two persons ..... that they are of different race, colour, nationality or ethnic or national origins.." It follows therefore that the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality.
5.3 The issue for decision by me in this case, then, is whether or not the respondent discriminated against the complainant on grounds of race, in terms of section 6(2)(h) of the Acts and contrary to section 8 of the Acts in terms of the conditions of employment. In reaching my decision in this case, I have taken into account all of the submissions, both oral and written, made to the Equality Tribunal in the course of my investigation.
5.4 In the case of Arturas Businkas v Eupat Ltd (In Liquidation) the Labour Court indicated that it would not hesitate to use hypothetical comparators where it is found that existing comparators, for one reason or another, are not suitable. The complainant has stated that there were no Irish drivers working with him for the respondent, he claims that there were only foreign nationals working there. Accordingly, I deem the use of an Irish hypothetical comparator as suitable in this instance.
5.5 Firstly, the complainant has submitted that the Decision of this Tribunal in 58 Named Complainants -v- Goode Concrete Limited places an obligation on an employer to furnish non-Irish employees with a contract of employment 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 it constitutes less favourable treatment of non-Irish employees if the respondent provides them with a contract of employment in English and not in a language which they can understand. I note that the Equality Officer went on to make an order to "put in place clear procedures for ensuring that non-national employees are clear as to their terms and conditions of employment and also understand all safety documentation" rather than specifying that the contract of employment should be provided in those employees native language, or any other language for that matter. Therefore, the clear principle in the Goode Concrete case was to place the onus on the respondent to make reasonable efforts to ensure that the relevant employees understood their rights and that it ensured that they were not treated less favourably than someone else who was made aware of those rights.
5.6 In considering this issue, I have also taken cognisance of the recent determination of the Labour Court whilst examining the circumstances in which the probative burden of proof operates held as follows:-
"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 I will now consider the issues that have been raised by the complainant in relation to the respondent's alleged failure to provide him with a written contract of employment which he contends constitutes unlawful discrimination of him on the grounds of race contrary to the Acts. It was submitted that the Tribunal should infer that he has been subjected to less favourable treatment on the grounds of his race and, accordingly, that the burden of proof should shift to the respondent to rebut the inference of discrimination. I note that the complainant was not aware if any other drivers were given a contract of employment or not. I note that the complainant had no other problems while he was working with the respondent.
5.8 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. Accordingly, the complainant must firstly be able to demonstrate some significant evidence of less favourable treatment and this treatment must be linked to his race in order to raise an inference of discrimination. All that has been presented to me is that a notional Irish worker would not put up with such a situation. However, the complainant has presented no evidence to me of less favourable treatment. In the circumstances, I am satisfied that the respondent's failure to provide the complainant with a written contract of employment was in no way attributable to his race. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this element of his complaint.
5.9 With regard to the second aspect of the claim, it is clear that the respondent has transferred the cost of the driving test, imposed on it by its insurance company, onto the complainant. It is without doubt that the respondent's insurance company places a requirement on it to ensure that its drivers have the adequate skills for the job. It is also clear that the driving test is only a requirement for foreign nationals. The respondent's legal representative claims that it is normal procedure in the industry. The complainant has no difficulty in having to be assessed. It would appear the benefits of the foreign national driver passing the driving test helps to reduce the insurance cost for the respondent. It is clear that a hypothetical Irish driver would not have to take the driving test, should an Irish national have been employed by the respondent. Accordingly, I am satisfied that had an Irish driver worked with the respondent and decided to leave the respondent after one and half year's employment there, he/she would not have to pay back the cost of a driving test that he/she did not have to undertake. I am satisfied that the respondent incurred a business cost for the employment of the complainant, a cost that is only liable because the complainant is a foreign national and it has decided to pass that cost on to the complainant.
5.10 There are two points in this situation which I find are fundamental in this case. Firstly, the benefit of the complainant passing the driving test is primarily for the respondent, as it reduces its insurance cost. And secondly, the complainant worked for the respondent for over a year and a half after passing the driving test. It is not as if the respondent had to incur a cost for a worker which moved on shortly after it had invested in him and got no or little return. Accordingly, I find the respondent's practice of passing on the cost of the driving test unfair and discriminatory in the circumstances of this case. Therefore, I am satisfied that the complainant has established a prima facie case in that he was treated less favourably than another person by being charged a cost when leaving the respondent that it would not have charged to an Irish driver in a comparable situation. Accordingly, I find the respondent's action to be discriminatory under the section 6(2) of the Acts and contrary to section 8(1) of the Acts.
6. 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:
6.2 I find that the complainant has established a prima facie case that the respondent discriminated against him on the race ground pursuant to section 6(2)(h) of the Acts in terms of conditions of employment contrary to section 8(1)(b) of the Acts.
6.3 In accordance with section 82 of the Employment Equality Acts I therefore order that the respondent pay the complainant the sum of €1,000 in compensation for the effects of the discrimination suffered. This award is not in the nature of pay and therefore is not subject to tax.
_________________
James Kelly
Equality Officer
17th August 2011