THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2011-215
PARTIES
Artur Przewozniak
(Represented by Independent Workers' Union)
v
Futura Frames Limited
(Represented by Peninsula Business Services)
File Reference: EE/2009/143
Date of Issue: 23 November 2011
Headnotes: Employment Equality Acts, 1998 to 2008 sections 6 (2),7, 8 and 29(5) - discriminatory treatment - race - conditions of employment - discriminatory selection for lay-off - equal pay - prima facie case.
1. Dispute
This dispute involves a claim by Mr Artur Przewozniak (hereinafter "the complainant"), who is a Polish national, that he
(i) was discriminated against by Futura Frames Limited (hereinafter "the respondent") in relation to conditions of employment on grounds of race, in terms of section 6 (2) of the Employment Equality Acts, 1998 - 2008 (hereinafter "the Acts") and contrary to section 8 of the Acts by not offering him the same treatment in relation to redundancy as the respondent afforded to other persons ("the comparators") where the employment circumstances of the complainant and the comparators were not materially different; and
(ii) performed "like work" with another named employee of a different nationality to him (hereinafter "the pay comparator") in terms of section 7 of the Acts and he was therefore entitled to the same rate of remuneration as paid by the respondent to that employee in accordance with section 29 of the Acts.
2. Background
The Complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 2 March 2009. A written submission was received from the complainant on 11 August 2009. A written submission was received from the respondent on 22 September 2009. As required by section 79(1) of the Acts and as part of my investigation, I held a hearing of this complaint on 10 May 2011. Both parties attended the hearing.
3. Summary of the Complainant's case
3.1 The complainant was employed by the respondent as a manufacturing general operative (G.O.) from 2 July 2007 to 21 November 2008 when he was dismissed. He claims he was unfairly selected for redundancy on the grounds of race (nationality). The respondent indicated to its employees in November 2008 that due to a downturn in business, lay-offs would take place. The complainant was selected for lay-off on 11 November 2008 (indicated in writing by the respondent). He was provided with a reference by the respondent on 18 November 2008, a copy of which was submitted in evidence. This indicated satisfaction with the complainant's work and abilities. The complainant was not selected for dismissal on the basis of non-adherence to company requirements. However, two named G.O.s of less service and ability Mr X and Mr Y (the comparators) who were Irish, not Polish, nationals, were allowed to remain in their employment.
3.2 He also claims that he was discriminated against in terms of pay on the grounds of race (nationality) in that he was paid less than a named colleague and employee of the respondent of Irish nationality (the pay comparator). The complainant was paid a rate of €11 per hour while the pay comparator was paid €20.18 per hour. The complainant argued that both he and the pay comparator performed the same and interchangeable work, with infrequent or little difference. The complainant contended that the respondent had a case to answer re payment of a lesser amount to an employee of Polish nationality, as against an employee of Irish nationality.
4. Summary of the Respondent's case
4.1 The respondent company manufactures PVC and aluminium windows and doors and double glazed units to order. It does not produce for stock. It relies heavily on the construction industry for its business. In recent times the number of orders placed with the respondent dropped significantly, requiring the respondent to introduce cost reduction measures including short time, temporary lay-off and finally redundancies. From 100 employees in 2007 they employed 47 in 2011 with significant short-time working.
4.2 The respondent claims that selection for redundancy was based firstly on an analysis of employees' skill sets and secondly on length of service to ensure that the appropriate key personnel remain in place to allow the respondent to remain in business with fewer employees. The respondent reduced its overall staff numbers from 100 to 70 in 2008, 19 of these were compulsory lay-offs and redundancies.
4.3 As regards the equal pay claim, the respondent states that the proposed comparator is not in fact a real comparator of the complainant. The proposed comparator is the complainant's manager, Mr Z. Mr Z is the Glass Production Manager, a role which of its nature requires greater responsibility than that of a General Operative. Mr Z was head-hunted by the respondent for his vast experience in the industry over 15 years. The respondent provided details of the gross hourly rate for General Operatives in the complainant's department in 2008, which showed no significant variation in the pay of different nationalities. The highest paid General Operative was Polish.
5. Conclusions of the Director
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 complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If 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. In a recent Determination the Labour Court, 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."
5.2 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. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.3 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 discriminatory ground of race as follows - "as between any 2 persons, ... that they are of different race, colour, nationality or national origins".
5.4 Section 8(6) of the Acts provides that 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),
(b) the same working conditions, and
(c) the same treatment in relation to overtime, shift work, short time, transfers,
lay-offs, redundancies, dismissals and disciplinary measures,
as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.
5.5 Section 29 (1) of the Acts provides it shall be a term of the contract under which C is employed that, subject to this Act, C shall at any time be entitled to the same rate of remuneration for the work which C is employed to do as D who, at that or any other relevant time, is employed to do like work by the same or an associated employer, where in relation to the ground of race, C and D differ as to race, colour, nationality or ethnic or national origins or any combination of those factors. Section 29 (5) of the Acts provides that nothing in this Part shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees.
Discriminatory Dismissal
5.6 The first element of the complainant's claim concerns the allegation that he was subjected to a discriminatory dismissal by the respondent on the grounds of his race. The complainant claims that he was selected unfairly for being laid off because of his race and that the respondent retained two (named) Irish workers who were recruited after him and were less competent than him. The respondent disputes this. The respondent argues that one of the two comparators was recruited before the complainant. The other comparator, while recruited after the complainant had previous relevant experience in former employments, both in Great Britain and in Ireland. The respondent's redundancy policy in 2008, as admitted by the respondent, may have been opaque. However, in analysing the 19 lay-offs and redundancies carried out by the respondent in 2008, I note that one Irish General Operative from another division of the operation, who was recruited on the same day as the complainant, was laid off more than six months prior to the complainant. I cannot conclude on the balance of probabilities that the complainant was, on the grounds of his nationality, not treated the same in relation to his lay-off. Therefore the complainant's claim of discriminatory dismissal on the grounds of race fails.
Equal Pay
5.7 From oral evidence given by both the complainant and the respondent it is obvious that Mr Z gave instructions to the complainant. Mr Z was the complainant's supervisor and the difference in remuneration between the complainant and Mr Z was due to their different positions in the work hierarchy. I conclude therefore that Mr Z was paid at a higher rate of remuneration than the complainant on grounds other than the discriminatory grounds, and therefore the respondent can avail of the defence in section 29 (5) of the Acts.
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. I find that:
(1) The respondent did not discriminate against the complainant on race ground pursuant to section 6(2) of the Acts, in respect of selection for lay-off contrary to section 8(6) of the Acts; and
(2) The complainant was not entitled to the same remuneration as the named comparator.
Therefore the complainant's case fails.
_______________
Niall McCutcheon
Director
23 November, 2011