THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision - DEC-E2011-217
PARTIES
Ausra Puskunigiene
(represented by Richard Grogan & Associates,
Solicitors)
and
Edward Etukudoh
t/a Euro Cleaning Services
File Reference: EE/2009/857
Date of Issue: 24th November, 2011
Headnotes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - race - conditions of employment - training - discriminatory dismissal - failure to establish a prima facie case
1. Dispute
1.1 This case concerns a complaint by Ms. Ausra Puskunigiene who is a Lithuanian national, that she was discriminated against by Mr. Edward Etukudoh t/a Euro Cleaning Services on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 in terms of her conditions of employment, training and in relation to discriminatory dismissal.
2. Background
2.1 Ms. Ausra Puskunigiene referred a complaint under the Employment Equality Acts, 1998 to 2008 to the Director of the Equality Tribunal on 27 November, 2009. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case on 3 November, 2011 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 2011. This is the date I commenced my investigation. A written submission was received from the complainant on 15 March, 2010 and from the respondent on 28 April, 2010. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to Hearing on 4 November, 2011.
3. Summary of the Complainant's case
3.1 The complainant, who is a Lithuanian national, stated that she was employed by the respondent as a cleaner from January, 2004 until 10 July, 2009 when her employment was terminated. The complainant stated that the respondent also employed other workers of Lithuanian, Polish, Romanian and African origin during her period of employment. The complainant stated that when her employment was terminated there were workers of Romanian origin and she employed on the site where she worked. The complainant submitted that the respondent failed to provide her with a written contract or terms of employment when she commenced employment and she contended that this constitutes unlawful discrimination of her on the grounds of race contrary to the Acts. The complainant submitted that the respondent failed to provide her with any health and safety documentation or training during the course of her employment. The complainant submitted that the respondent's failure to provide her with a health and safety statement and training in a language which she could understand amounts to discrimination within the meaning of the Acts.
3.2 The complainant also claims that she was dismissed from her employment by the respondent in a discriminatory manner. The complainant stated that she was informed by the respondent on 10 July, 2009 that her employment was being terminated on the grounds of redundancy. The complainant stated that a number of workers of Romanian nationality were retained in employment by the respondent following her dismissal despite the fact that they had less service with the respondent. The complainant also stated that she had made enquiries to the National Employment Rights Agency (NERA) regarding her employment rights in the months prior to her dismissal and she claims that it was for this reason that she was dismissed rather than by reason of a genuine redundancy situation. The complainant stated that she did not receive a statutory redundancy payment from the respondent upon the termination of her employment and that she had to refer a claim to the Employment Appeals Tribunal to establish her right to this payment. The complainant submitted that the manner in which her dismissal was effected amounts to discrimination on the grounds of her nationality contrary to the Employment Equality Acts.
3.3 The complainant 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 he represented at the Hearing of the complaint. However, the respondent provided a written submission to the Tribunal on 28 April, 2010 in which he denied that the complainant was subjected to discrimination on the grounds of her race. The respondent submitted that the complainant was made redundant due to insufficient funds to continue running the business and a lack of work coming in. The respondent submitted that the complainant was being paid a very high salary in comparison to other workers and that she was the last person to be let go from the company.
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 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. 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 complainant was discriminated against and/or discriminatorily dismissed by the respondent 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.
5.4 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."
Conditions of Employment and Training
5.5 Firstly, I will consider the issue that has been raised by the complainant in relation to the respondent's alleged failure to provide her with a written contract of employment and a health and safety statement/training which she has contended constitutes unlawful discrimination of her on the grounds of race contrary to the Acts. In the first instance, it should be noted that there is no general obligation on an employer to provide an employee with a written contract of employment. There is, however, a statutory requirement on employers to provide employees with a written statement of certain terms of their employment under the Terms of Employment (Information) Act, 1994. Enforcement of rights under this statute rests with the Rights Commissioner (at first instance) and not this Tribunal.
5.6 In considering this issue, I note the complainant was unable to confirm whether or not the respondent had issued contracts of employment and health and safety documentation/training to any of the other workers who were employed during her period of employment. I accept that the complainant has adduced evidence to suggest that she 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 its 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. In the circumstances, I am satisfied that the complainant has not adduced any evidence from which I could reasonably conclude that she was treated less favourably than other workers of a different nationality in terms of the respondent's failure to provide her with a written contract of employment or a health and safety statement/training. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this element of her complaint.
Discriminatory Dismissal
5.7 The complainant has also claimed that she was subjected to discriminatory dismissal on the grounds of her nationality. The complainant claims that she was dismissed by the respondent after she made enquiries with the National Employment Rights Agency (NERA) regarding her employment rights (i.e. in relation to holiday pay and the provision of payslips). The complainant claims that her employment was subsequently terminated and she was informed that she was being made redundant. The complainant disputes that a genuine redundancy situation existed and she claims that a number of Romanian workers, with lesser service than her, were retained in employment after her dismissal. In the respondent's written submission, it was stated that the complainant was made redundant due to insufficient funds to continue running the company and a lack of new contracts coming in. I note that the respondent submitted copies of P45's which were issued to a number of other workers around the same period that the complainant's employment was terminated and copies of bank statements which would appear to corroborate his contention that the business was encountering financial difficulties around that period of time.
5.8 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 complainant must be able to demonstrate some significant evidence of less favourable treatment and this treatment must be linked to her nationality. In the present case, the complainant has made assertions which are unsupported by evidence regarding the circumstances surrounding the termination of her employment. The complainant has not adduced any evidence from which I could reasonably conclude that the termination of her employment or the reason that she was selected for redundancy was in any way influenced by her Lithuanian nationality. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to dismissal on the grounds of her race contrary to the Employment Equality Acts in terms of the manner in which her employment with the respondent was terminated.
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). I find that the respondent did not discriminate against the complainant on the race ground pursuant to section 6(2)(h) of the Acts in respect of her conditions of employment and training contrary to section 8(1) of the Acts.
(ii). I find that the respondent did not discriminate against the complainant 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 case.
______________
Enda Murphy
Equality Officer
24th November, 2011