THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011 - 158
PARTIES
Kepezniskas, Szara & Bachovej
(represented by Richard Grogan and Associates, Solicitors)
and
All Purpose Stone Limited t/a Sanderwood Stone Co.
(In Voluntary Liquidation)
File References: EE/2008/548 - 550
Date of Issue: 30th August 2011
File references: EE/2008/548 - 550 - DEC-E2011-158
Keywords
Employment Equality Acts 1998-2008 - sections 6 and 8 - discriminatory treatment - conditions of employment - health & safety training and documentation - circumstances in which notional comparator will be considered - race.
1. Dispute
1.1 These cases concern complaints by Mr. Tomasz Szara, a Polish national; Mr. Aleksejus Bachovej, a Lithuanian national and Mr. Giedrius Kepezniskas, also a Lithuanian national who claim that they were discriminated against by All Purpose Stone Limited t/a Sanderwood Stone Co., on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 in terms of discriminatory treatment in training and conditions of employment.
2. Delegation of the complaint
2.1 The three complaints were referred under the Employment Equality Acts, 1998 to 2008 to the Director of the Equality Tribunal on the 18th August 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 3rd June 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 the complainants on the 9th December 2008. The respondent informed the Equality Tribunal that it had entered liquidation on the 15th December 2008. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to a hearing on the 17th June 2011.
3. Summary of the Complainants' case - Mr. Giedrius Kepezniskas
3.1 Mr. Giedrius Kepezniskas did not present himself at the hearing and his legal representative was unable to offer any explanation for his absence.
4. Summary of the Complainants' case - Mr. Szara and Mr. Bachovej
4.1 Mr. Szara claims that he moved to Ireland in 2005 and was employed by the respondent as a Stone Mason since February 2007 following an advertisement he saw in a Polish newspaper. Mr. Bachovej claims that he moved to Ireland in April 2007 one week before starting work as a Stone Mason with the respondent. He claims that he was told about the job by a friend working with the respondent at the time. Both complainants claim that there were only Lithuanian and Polish Stone Masons employed by the respondent. They claim that the foremen/managers were Irish. Mr. Bachovej in evidence did claim that there was "a woman who could translate" when the management needed to communicate with the employees and visa versa.
4.2 The complainants claim that they did not receive a written contract of employment. They also claim that they never received any health & safety training or documentation while working with the respondent. They claim that they did not receive their P45 or P60 documents. They claim that they did not get payslips. They were unaware if any of their fellow workers with the respondent received any of the above mentioned. They claim that the respondent's failure to provide a contract of employment and health & safety training and documentation in their own language, or a language they could understand was in breach of the Acts. They claim that as they were foreign nationals the respondent had a responsibility to take special measures to protect them. They said that following the Decision of the Tribunal in 58 Named Complainants -v- Goode Concrete Limited, that there is an obligation on an employer to provide employees with a written contract of employment and health & safety training documentation in a language which they can understand. It was the complainants' submission that the respondent's failure to provide all the abovementioned amounts to discrimination within the meaning of the Acts.
4.3 They claim that they were not paid in accordance with the specific Registered Employment Agreement for the Construction Industry (REA) nor were they joined into the Pension and Sick Pay Scheme. They claim that they were unaware if any of their fellow workers were paid in accordance with the REA or were entered into the Pension and Sick Pay Scheme. In their submission they contend that in line with the reasoning in the Campbell Catering Limited Case it have would been reasonable to argue that there was a legal obligation on the respondent to advise the complainants of their rights and in particular that they was covered by the REA for the Construction Industry.
4.4 The complainants claim that the Stone Mason positions were advertised in a Polish newspaper and this was a predetermined policy by the respondents to keep the Irish Stone Masons out. They claim that Stone Masons are craft workers, and that it is a very well unionised industry where the members are paid union rates. They claim that by advertising the jobs in Polish newspapers no Irish would be aware of the positions and the respondent could "keep its employees off the radar (sic)". They presented me with decisions from the Rights Commissioners where it was found that Mr. Kepezniskas and Mr. Szara were paid some 25% less the REA for the industry.
4.5 The complainants have stated that as there is no Irish comparator, in this case, that they would ask the Equality Tribunal to consider a notional Irish comparator. They claim that such a comparator would not have had put up with the same conditions of employment imposed on him/her.
5. Summary of the Respondent's case
5.1 The respondent failed to provide any submission in response to the claim by the complainants. The Liquidator wrote to the Equality Tribunal to confirm that it would not be attending the oral hearing.
6. Conclusions of the Equality Officer
6.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him/her. If he/she succeeds 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 this complaint, therefore, 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.
6.2 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".
In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
6.3 Firstly, in relation to the complainants claim that as no Irish comparator was employed by the complainant that I should consider an Irish hypothetical comparator as the appropriate comparator in this case. I note the decision in the case of Arturas Businkas v Eupat Ltd (In Liquidation) where 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 complainants' evidence is that there were no Irish Stone Masons working with them and all the Irish employed there were in a Supervisory/Management position. I also note in Toker Developments v Edgars Grods that the Labour Court confirmed it "is settled law that in cases of equal treatment a hypothetical comparator can be relied upon but only where there is some evidential basis upon which it could be concluded that such a comparator would have been treated more favourably in the circumstances of a particular case. ... It would clearly be impermissible for the Court to reach conclusions of fact based upon mere supposition or speculation."
Accordingly, I deem the use of an Irish hypothetical comparator would be suitable in this instance, upon the complainants establishing that an Irish comparator would have been treated more favourably.
Mr. Giedrius Kepezniskas
6.4 In relation to claim brought by Mr. Giedrius Kepezniskas, I am satisfied that the complainant was provided with ample notice in relation to the investigation and the proceedings. As part of my investigation under Section 79 of the Acts, I am obliged to hold a hearing. I note that his legal representative was unaware of his whereabouts. I find that the complainant's failure to attend the hearing was unreasonable in the circumstances and that any obligation on me under Section 79 has ceased. As no direct evidence was presented by the complainant to establish a prima facie case of discrimination, I conclude the investigation in relation to his case and find against the complainant.
Mr. Szara and Mr. Bachovej
6.5 In relation to the claims brought by Mr. Szara and Mr. Bachovej, I note they have 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 and health & safety documentation in a language which they understand. However, having reviewed the decision I note that the Equality Officer deemed 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 also note that the Equality Officer decided 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 and/or health and safety statement 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.
6.6 I have also taken cognisance of the recent determination of the Labour Court in the case of Arturs Valpeters v Melbury Developments Ltd EDA0917 [2010] 21 E.L.R., 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."
6.7 I have considered the issues that have been raised by the complainants in relation to the respondent's alleged failure to provide them with a written contract of employment and health & safety training and documentation which they contend constitutes unlawful discrimination of them on the grounds of race contrary to the Acts. It was submitted that the Tribunal should infer that they have been subjected to less favourable treatment on the grounds of their race and, accordingly, that the burden of proof should shift to the respondent to rebut the inference of discrimination.
6.8 In the present case, I note the evidence of the complainants where they state that the respondent did make someone available to them to assist in translation/interpretation when it was needed. I note the claim that they did not receive any documentation or any training. Having studied the evidence and in consideration of the Labour Court decision in Melbury I am satisfied that I have not been presented with any convincing evidence to support that the complainants were treated any differently, not to mind less favourably, than any of their fellow workers nor that of a hypothetical Irish worker that would be employed by this respondent. I am not satisfied that the complainants have adduced any convincing evidence from which I could reasonably conclude that the respondent would have complied with the Law even should it have employed Irish workers. Therefore, I am not satisfied that the complainants have adduced any evidence from which I could reasonably conclude that they were treated less favourably in not being provided with contracts of employment or Health and Safety training or documentation. Accordingly, I find that the complainants have failed to establish a prima facie case of discrimination in relation to this element of the complaint.
6.9 The next element of the complaint concerns the allegation that the complainants were not provided with P45 or P60 documents and did not receive payslips. I note the complainants here claim all the respondent's Stone Masons positions were advertised in Polish newspapers so as to keep the Irish Stone Masons out and keep the operation "under the radar", so that the respondent did not have to comply with Irish Laws concerning employees. As mentioned above the Labour Court has made it clear in its decision in Melbury that the onus squarely sits with the complainants to establish a prima facie case. This requires the complainants to demonstrate something more than "mere speculation or assertions" to suggest that an action, treatment or otherwise by the respondent to the complainants would not have occurred to a person of a different race or nationality, in particular an Irish person, and therefore the complainants were treated less favourably. I note the complainants' evidence is that the respondent just did not comply with the relevant Employment legislation. However, having regard to the totality of the evidence adduced, I am not satisfied that the complainants have adduced any convincing evidence from which I could reasonably conclude that the respondent would have complied with the Law even should it have employed Irish workers. Therefore, I am not satisfied that there is any compelling evidence to construe that the complainants were treated less favourably than an Irish person would have been treated by this particular respondent in similar circumstances. Accordingly, I find that the complainants have failed to establish a prima facie case of discrimination in relation to this element of their complaint.
6.10 In relation to the claim that the respondent did not have to pay the complainants in accordance with the REA for the Construction Industry or include them in the Construction Workers Pension and Sick Pay scheme. I note and I accept that the complainants have adduced evidence to suggest that they may have been treated badly by the respondent in terms of the rate of pay and entitlements in accordance with a particular REA or entry into particular Pension and Sick Pay Schemes. However, I am satisfied that I do not have any jurisdiction to decide whether or not the respondent was in breach of its obligations under the relevant employment legislation in relation to the REA. I note this is not an Equal Pay case but rather a case of discriminatory treatment regarding the conditions of employment under Section 8 of the Acts. Section 8(6) specifically states:
"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),"
[my emphasis added]
I note that there are a number of decisions from this Tribunal in relation to this issue. I note the Equality Tribunals decision in DEC-E2010-173 where the Equality Officer states,
"It ought to be noted that a claim for discriminatory treatment cannot rest on a mere claim concerning remuneration (equal pay claim). Section 8(6) clearly excludes remuneration and pension rights from conditions of employment but includes same terms of employment, same working conditions, overtime, shift work, short time, lay-offs, redundancies, dismissals and disciplinary procedures. While I note that the respondent stated that he paid the Lithuanian nationals less than what a REA would have stipulated; he submitted it was because they did not have their own tools nor transport. These facts, in relevant circumstances, may give rise to a claim for equal pay. However, it is clear that in the circumstances where the respondent was not notified of such claims I have no jurisdiction to investigate claims for equal pay. The complainants have not shown any evidence of less favourable treatment in relation to conditions protected in the Acts. Furthermore, I note that the complainants' representative argued that by comparing these conditions with a notional comparator (the respondent only employed non-nationals), the complainants' conditions of employment were discriminatory in that they missed out on all the benefits that come with a REA. REA claims, in themselves, are not matters within this Tribunal's jurisdiction. The complainants provided this Tribunal with no evidence to support an argument - which was based on the complainants' race - supporting an argument for less favourable treatment."
Accordingly, I am satisfied that Section 8(6) clearly excludes remuneration and pension rights from a claim of alleged discriminatory treatment on the conditions of employment, as is the case before me for consideration, and I have no jurisdiction to consider this matter any further.
6.11 In summary, 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 complainants must firstly be able to demonstrate some significant evidence of less favourable treatment as compared to how a notional Irish comparator would be treated in similar circumstances, and this must be linked to their Race in order to raise an inference of discrimination. Having regard to all the evidence adduced in this case, I find that there is insufficient evidence for me to come to the conclusion, on the balance of probabilities, that the respondent have would have changed its position and would comply with the Law should it have employed a Irish workers and accordingly would have been treated them more favourably. Accordingly, I find that the complainants have failed to present any evidence for them to establish a prima facie case of discrimination on the grounds of their race.
7. Decision
7.1 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:
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.
Accordingly, I find in favour of the respondent in this matter.
______________
James Kelly
Equality Officer
30th August 2011