FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : A COMPANY (REPRESENTED BY BYRNE WALLACE SOLICITORS) - AND - A WORKER DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr O'Neill |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2008
BACKGROUND:
2. The worker appealed his case to the Labour Court on the 7th April, 2010, in accordance with Section 83 of the Employment Equality Act, 1998 - 2008. A labour Court hearing took place on the 9th December, 2010. The following is the Court's determination:
DETERMINATION:
The Dispute:
The Complainant submitted a Complaint submitted a complaint to the Equality Tribunal pursuant to the terms of the Equality Act 1998 – 2004. The details of the complaint were summarised by the Equality Officer as follows: -
- “This dispute involves a claim by the worker (the Complainant) that he (i) was discriminated against by the Company ("the respondent") on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts, (ii) was harassed by the respondent on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 14A of those Acts, (iii) was victimised by the respondent in terms of section 74(2) of the Employment Equality Acts, 1998 and 2004 and (iv) performed "like work" in terms of section 7 of the Employment Equality Acts, 1998 and 2004 with a named comparator and was therefore entitled to the same remuneration as paid to that comparator in accordance with section 29 of those Acts (this element of the complaint was also referred on grounds of race). The complainant accepts that the matters at (i)-(iii) above were not referred to this Tribunal within the timelimits prescribed at section 77(5) of the Acts. He submits however that he can rely on section 77(6) of the Acts due to misrepresentation of certain information by the respondent. The complainant notes that the timelimits prescribed at section 77(5) do not apply to complaints in respect of equal pay.
- The respondent, in the first instance, rejects the complainant's assertions in their entirety. It further submits that (i) the complainant cannot rely on section 77(6) of the Acts and (ii) that the remuneration paid to the complainant and the named comparator is lawful and in accordance with section 29(5) of the Acts.”
The Equality Officer considered the complaint and made the following decision:
- I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision.
I find -
(i) that the complainant had failed to show, on the balance of probabilities, that the delay in referring his complaint to this Tribunal outside of the timelimits prescribed at section 77(5) of the Employment Equality Acts, 1998 and 2004 was due to misrepresentation by the respondent. He cannot therefore avail of section 77(6) of those Acts and consequently this Tribunal has no jurisdiction to investigate the non-pay elements of his complaint.
(ii) that the difference in the rates of remuneration paid by the respondent to the complainant and a named comparator in June, 2004 and March, 2005 - in respect of share option grants and bonus - are lawful in accordance with section 29(5) of the Employment Equality Acts, 1998 and 2004.
The Complainant appealed this decision to the Labour Court. The Labour Court heard the appeal on 9th Dec. 2010.
Background:
The facts of the case are largely agreed between the parties and can be restated in the terms set out by the Equality Officer: -The complainant, who is Nepalese, commenced employment with the respondent in July, 2001 and ceased employment on 31 August, 2005. The manner in which the employment relationship between the parties terminated was the subject of proceedings under the unfair dismissals legislation. The complainant states that during his employment he was subjected to discriminatory treatment, harassment and victimisation by the respondent. In addition he asserts that he received a lower rate of remuneration than that paid to a named comparator, despite both of them performing "like work" within the statutory meaning of that term.
The complainant states that the respondent misrepresented certain matters to him during his employment and that the alleged less favourable treatment of him did not become evident until the Hearing of his unfair dismissal claim at the Employment Appeals Tribunal in August, 2006. He submits that he is therefore entitled to avail of section 77(6) of the Acts in relation to the non-pay elements of his complaint.
The respondent rejects the complainant's assertions in their entirety and further submits that (i) the complainant cannot rely on section 77(6) of the Acts and (ii) that the remuneration paid to the complainant and the named comparator is lawful in accordance with section 29(5) of the Acts.
Summary of the Complainant’s Case
The complainant was employed by the respondent from 9 July, 2001 until 31 August, 2005 - although the last day he attended at work was 31 May, 2005. He states that during his employment he was treated less favourably and harassed by the respondent on grounds of race - his Nepalese nationality. The complainant provided details of the alleged discriminatory treatment and harassment of him.
The former focuses on his alleged promotion to the position of Director of IT Applications for Europe in December, 2003/January, 2004.
The harassment element of his complaint is centred on behaviour attributed to his Line Manager. Details of this alleged behaviour was also furnished and the complainant stated that it continued throughout his period of employment. It took the form, inter alia, of unfair criticism of his use/command of English and keeping a dossier of the complainant - which the complainant contends contains false and inaccurate information about him.
The complainant submits that he can rely on section 77(6) of the Acts as the respondent misrepresented certain information to him. In particular he states that his Line Manager confirmed he had been promoted in December, 2003/January, 2004 in the course of the complainant's Annual Review during March/April, 2004. He adds that it was only when personnel from the respondent gave evidence at the Hearing of his unfair dismissal complaint at the Employment Appeals Tribunal on 30 August, 2006 which contradicted this view, that he believed he was the victim of discriminatory treatment and referred his complaint to this Tribunal.
The complainant asserts that following his promotion in December, 2003/January, 2004 he did not receive the same level of stock options which the named Irish comparator received at that time. He also contends that he did not receive the same level of stock options and bonus as the comparator in 2005 although his contract provided for it. He states that he performs "like work" with the comparator in terms of section 7 of the Acts and submits therefore that he is entitled to those elements of the remuneration package. The complainant notes that the respondent rejects the assertion he was promoted with effect from 12 January, 2004. He submits that the respondent is estopped from adopting this position as the Employment Appeals Tribunal found (in determining whether or not he had been unfairly dismissed) that the complainant had been promoted in January, 2004.The complainant contends that the performance appraisal process conducted in March, 2005 was discriminatory in that it did not acknowledge the full list of tasks he had completed during the year. In particular he points to the negative evaluation he received in respect of the Communications and Team Development criteria. He asserts that the poor rating he received in these areas is reflective of his Line Manager's predisposition to discriminate against him.Summary of the Respondent’s CaseThe respondent rejects the complainant's assertions that he was treated less favourably and harassed by the respondent. Notwithstanding this it submits that the complainant cannot rely on section 77(6) of the Acts to bring the non-pay elements of his complaint within time. It submits that all of the alleged treatment of the complainant could only have occurred prior to 31 August, 2005 - the date his employment ceased. It adds that all of these alleged incidents were within the complainant's knowledge at that time and he decided not to refer a complaint to this Tribunal and exercised his statutory rights under unfair dismissal legislation instead.The respondent accepts that the complainant's Line Manager used the phrase "promoted" in the course of the complainant's Annual Review in March/April, 2004. However, this was an error on his part and it submits it could not be considered as constituting misrepresentation in terms of section 77(6) of the Acts. It further submits that the term "misrepresentation" should be interpreted in a similar fashion to that applied in contract law - that is a deliberate omission or false statement by a person with the intention of misleading another person. It adds that the complainant was not promoted in December, 2003/January, 2004 - he was instead transferred to a new position on the same basic pay and remuneration package with effect from 12 January, 2004. In this regard the respondent submitted a copy of the complainant's Revised Contract of Employment at that time.The respondent accepts that the complainant and the named comparator perform "like work" in terms of section 7 of the Acts for the period of the claim - December, 2003 until August, 2005. It submits however that there are grounds unconnected with race that render the remuneration packages paid to the complainant and comparator lawful in accordance with section 29(5) of the Acts. The respondent states that the comparator received a stock option grant valued at $4,000 in June, 2004. This was to reflect his promotion to a position at Director level that had occurred in January of that year. The complainant was not promoted at that time - rather he was transferred to a new post - and he was not therefore entitled to a stock option grant at that time. The respondent states that the complainant received a similar stock option grant on his recruitment at Director level some years previously. The respondent states that in March, 2005 the complainant received an annual performance based stock option grant valued at $1,600 which represents 50% of the award available and is reflective of the "Below Expectations" rating the complainant received at that time. The comparator received an annual performance rated stock option grant valued at $3,200 which represents the full extent of the award available and is reflective of the "Fully Effective" rating the comparator received at that time. It submits therefore that the difference in the value of the stock options awarded to the complainant and comparator is related to factors unconnected with their nationalities and is in accordance with the reward scheme operated by the respondent at that time. Consequently, the respondent argues that the difference in the rates of remuneration paid to the complainant and comparator as regards this element of his complaint is lawful in accordance with section 29(5) of the Acts.The respondent states that it operates a Bonus Payment Scheme for employees - payment of which is made in March of each year and is based on performance in the previous calendar year. It states that both complainant and the comparator are in the same Bonus Target Band and could achieve a maximum bonus of 20% of their respective salaries. It adds that in March, 2005 the complainant received a bonus of €9,200 - which represents 50% of the bonus available and is reflective of the "Below Expectations" rating he received at that time in respect of his performance in 2004. The comparator received €14,800 - which represents 100% of the bonus available and is reflective of the "Fully Effective" rating he received in respect of his performance in 2004. It submits therefore that the bonus available to both was the same - 20% of salary, that the complainant received the amount commensurate with his performance the previous year, as did the comparator and that there were objective reasons unconnected with the nationalities of the complainant and comparator which explain the difference in the amounts awarded. Consequently, the respondent argues that the difference in the rates of remuneration paid to the complainant and comparator as regards this element of his complaint, is also lawful in accordance with section 29(5) of the Acts.The respondent rejects the assertion it is estopped from arguing that the complainant was not promoted with effect from 12 January, 2004. It submits that in order to give rise to an estoppel the issue in question must be identical to an issue decided in previous proceedings. It further submits it must also be shown that in the course of the previous proceedings the issue actually arose for decision and that it was necessarily determined by the Court (or Tribunal) as a matter fundamental to its decision. The respondent seeks to rely on the Decision of the Labour Court in John Cotter v Limerick VEC in respect of its arguments on this matter.Findings of the CourtThe issues for decision by the Court are(i) whether or not the respondent’s communications with the Complainant amounted to "misrepresentation" within the statutory meaning of that term. If it so did whether or not the Complainant was thereby entitled to avail of section 77(6) of the Employment Equality Acts, 1998 - 2004 in respect of the non-pay elements of his complaint.
(ii) if so, did the respondent discriminate against and/or harass the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to sections 8 and 14A respectively of those Acts,
(iii) if so, did the respondent victimise the complainant in terms of section 74(2) of the Employment Equality Acts, 1998 and 2004 and
(iv) are there grounds unconnected with the race (nationality) of the complainant and named comparator which render certain elements of the remuneration packages paid to them lawful in terms of section 29(5) of the Employment Equality Acts, 1998 and 2004.
In reaching its Determination the Court has taken into account all of the submissions, oral and written, made to it as well as the evidence presented at the Hearing.It is common case that the complainant's employment with the respondent ceased on 31 August, 2005. It follows therefore that this date represents the last date on which any unlawful discriminatory treatment, harassment or victimisation of the complainant contrary to the Acts could arise .The complainant did not lodge his complaint within the (extended) period of twelve months from the last date of alleged discrimination/victimisation set out in section 77(5) of the Acts. The Complainant admits this delay but submits that he was the victim of misrepresentation on the part of the Respondent and that this accounted for the delay in bringing proceedings under the Act. He submitted that his claim is brought within time by virtue of Section 77(6) of the Act.Section 77(6) says"Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection 5(a) shall be construed as if the reference to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant's notice."The effect of the provision is that the timelimit for referring a complaint to this Tribunal, in circumstances where the respondent has engaged in any misrepresentation starts to run when the complainant first becomes aware of that misrepresentation. In order to avail of the provision the complainant must satisfy the Court, as a matter of probability, that the there was misrepresentation by the respondent and that the delay in referring his complaint is “due” to the “misrepresentation by the respondent”.The complainant contends that he was promoted in January, 2004.The Respondent disputes this and submits that the revised contract of employment signed by the complainant, at that time, clearly indicates that his appointment as Director of European IT Applications was a “transfer” of employment for him rather than a promotion.The complainant states that notwithstanding this he repeatedly raised the matter of promotion with his Line Manager after he signed that contract and before the March Annual Review the following year. In the course of that Review in his Line Manager confirmed in writing that"recently Govind has been promoted to the European Applications role ..."- although the respondent submits this was done in error. The complainant states that he responded to this review noting the acknowledgement of his promotion. He said this comment (representation) satisfied his concerns at that time - i.e. that he had been promoted.On the basis of this documentation and the submissions made by the parties, the Court is satisfied that this amounted to misrepresentation within the statutory meaning of that term.However the Court must now examine whether or not the delay on the complainant's part in referring his complaint to this Tribunal is due to this misrepresentation.In the course of the hearing the complainant stated that he (i) did not consider the alleged behaviour of his Line Manager discriminatory at the time - just unfair and unequal, (ii) that he had not contemplated referring a complaint to this Tribunal prior to his Line Manager's comments in March/April, 2004 which resulted, in turn, in him deciding to refrain from referring that complaint and (iii) although he considered the treatment unfair and unequal he had no evidence to substantiate his complaint until the relevant evidence was given in another case before the EAT in late August, 2006. Accordingly he said he was unsure as to the veracity of any documents he had at that time. In addition, it is clear from the complainant's own submissions that the alleged harassment and victimisation of him continued to take place after the Line Manager's comments in March/April, 2004.It is difficult to see therefore how any misrepresentation by the respondent in March/April, 2004 could have contributed to the delay in referring those aspects of the complaint arising after that time, within the prescribed statutory time-limits.In light of this the Court finds that the complainant had failed to show, on the balance of probabilities, that the delay in referring his complaint to this Tribunal outside of the timelimits prescribed at section 77(5) of the Employment Equality Acts, 1998 and 2004 was due to misrepresentation by the respondent and he cannot therefore avail of section 77(6) of those Acts. It follows, therefore, that the Court has no jurisdiction to investigate the non-pay elements of his complaint.The Court however has jurisdiction to consider the equal pay claim submitted by the Complainant as this is not subject to the time constraints set out above. The Complainant submitted that that he was entitled to the same rate of remuneration as that paid by the respondent to a named Irish comparator.The Court notes that the respondent accepts that "like work", within the statutory meaning of the term as set out in section 7 of the Employment Equality Acts 1998 and 2004, existed between the complainant and comparator for the relevant period. However it relies on section 29(5) of those Acts to render the difference in remuneration lawful - a burden which it must discharge.The Respondent submitted that the Comparator became entitled to “stock options” on his promotion to Director level in 2004. The Complainant, at that time was already a director and consequently was not entitled to additional “stock options” when he was reassigned to a new job that did not involve promotion beyond “Director” level. It further submitted that the Complainant had received a greater number of “stock options” when he was originally appointed a “Director”. Accordingly it submitted that the reason for the difference in treatment was for reasons other than the “protected characteristic” as set out in the Act.The Complainant submitted that the Respondent was estopped from advancing the argument that he had not been promoted as this matter had been decided by the EAT and could not now be reopened.The Labour Court addressed this issue inJohn Cotter v Limerick VEC. The Court stated (whilst adopting the principles established inShaw v Sloan) that"in order to give rise to an estoppel the issue in question must be identical to an issue decided in the previous proceedings. In addition, it must also be shown that in the previous proceedings the issue actually arose for decision and that it was necessarily determined by the Court [or tribunal] as a matter fundamental to its decision.".From the evidence before it the Court is satisfied that this matter was not addressed in those terms by the EAT and accordingly finds that the Respondent is not estopped from raising this defence in these proceedings.The Complainant alleges discriminatory treatment regarding three other aspects of pay increases granted to him as compared to those granted to his comparator- (i) a share option grant following promotion in December, 2003/January, 2004 (paid in June of that year), (ii) a performance related share option grant in March, 2005 and (iii) a performance based bonus payment in March, 2005.In response to item (i) above the respondent states that the complainant was not entitled to the share option grant in June, 2004 because he was not promoted in January, 2004 - whereas the comparator was.Copies of the contracts signed by both the complainant and comparator at that time were furnished to the Court. It is clear from these documents that the comparator was promoted whereas the complainant's contract expressly states that it constituted a transfer of employment and that his terms and rate of remuneration remained unchanged. In addition, contrary to the complainant's arguments on the matter, the Court cannot accept that the internal notice dated 18 December, 2003 (also furnished to the Court) states that both he and the comparator were promoted - what it does say is that both he and the comparator are being appointed to new positions following a recent IT restructuring process. Finally, the Court notes that the complainant's Line Manager stated (as outlined at paragraph 5.3 above) that he had been promoted at that time - but the Court has already found that this was a misrepresentation of the actual situation at that time. By definition, if it was a misrepresentation it cannot also be true.
Having carefully examined all the evidence adduced by the parties on this matter the Court finds, on balance, that the complainant was not promoted in January, 2004.The respondent's share option scheme provides that employees appointed to a position at Director level receive a share option grant valued at $4,000 on appointment. This is what the comparator received in June, 2004. The complainant was already a Director and he had previously received a similar share option grant on his appointment to that level. It follows that in all of the circumstances he was not entitled to a further share option grant in January, 2004.The Court finds, therefore, that the grant of the share option (valued at $4,000) to the comparator in June, 2004 was unconnected to the nationality of the complainant and comparator and is therefore lawful in accordance with section 29(5) of the Acts.The remaining two elements of the complainant's equal pay claim concern a share grant option and bonus which were awarded in March, 2005 on the basis of performance in 2004. Copies of both the complainant's and comparator's Annual Review Form for 2004 were furnished to the Tribunal. The complainant was awarded an overall score of "Below Expectations" whereas the comparator received a overall score of "Fully Effective". In the course of the Hearing the complainant asserted that the assessment of him by his Line Manager was tainted by the latter's predisposition to discriminate against him. However, the complainant did not adduce any tangible evidence to support this assertion.The complainant signed off on the Review Form without complaint at that time and did not utilise the respondent's internal Grievance Procedure on the matter thereby indicating his satisfaction and concurrence with the accuracy of the performance review.The respondent provided the Court with a copy of its "Compensation Guidelines 2004/2005". This documentation indicates that an employee at the complainant's level who receives a "Below Expectations" overall Annual Review score can receive a maximum of 50% of the award available. The complainant received 50% of the awards available in respect of both the performance related elements - share grant option and bonus. The documentation also indicates that at the complainant's level - which was the same level as the comparator - an employee who receives a "Fully Effective" overall Annual Review score can receive a between 90% - 110% of the award available. The comparator received 100% of the award available which falls within that range.The Court also considered the possibility that the scheme itself was unconsciously biased in its make up or in its application to people of different ethnic origin. The Court however is satisfied that no such bias was discernible in the scheme or its administration and no evidence to the contrary was adduced that cast any doubt on this finding.In light of the foregoing the Court finds that there are grounds unconnected with the nationalities of the complainant and comparator which explain the difference in the rates of remuneration paid to them by the respondent and the difference is therefore lawful in terms of section 29(5) of the Employment Equality Acts, 1998 and 2004.
Determination:
The Court accordingly upholds the Decision of the Equality Officer and rejects the appeal.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
7th February, 2011______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.