THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2012 - 183
PARTIES
Mr James Killally (represented by Mr James Doran, B.L., instructed by Tormey Solicitors)
and
ESB Networks Ltd (represented by Mr Michael Conlon S.C., instructed by the respondent's in-house legal service)
File References: EE/2010/148
Date of Issue: 17th December 2012
Headnotes: Discrimination - age - victimisation - jurisdiction - employee within the meaning of the Acts - time limits
1. Claim
1.1. The case concerns a claim by Mr James Killally that ESB Networks Ltd discriminated against him on the ground of age contrary to Section 6(2)(f) of the Employment Equality Acts 1998 to 2008, in terms of conditions of employment, harassment, other discriminatory conduct and discriminatory dismissal, as well as victimisation and victimisatory dismissal.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 1 March 2010. A submission was received from the complainant on 3 March 2011. A submission was received from the respondent on 13 May 2011 and a second submission was received by the respondent on 6 September 2012. On 18 June 2012, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 26 September 2012. Additional submissions were requested from both parties at the hearing of the complaint. The last piece of correspondence relating to the complaint was received on 12 December 2012.
2. Summary of the Complainant's Written Submission
2.1. The complainant was employed with the respondent in its power generation business from 1978 to 1997, when he retired from that role and started to receive a pension from the respondent in respect of that employment. Concurrently, he worked for the respondent as a meter reader, part-time from 1975 and then full-time after his retirement.
2.2. The respondent's meter readers brought a test case to the Department of Social Protection Appeals Office, to determine their employment status for social welfare insurability purposes. The Appeals Officer found, and the High Court subsequently upheld this finding, that the respondent's meter readers were engaged on a contract of service and not a contract for services.
2.3. The trade union UNITE then concluded negotations with the respondent, on behalf of the meter readers for substantial payment in consideration of the union members agreeing to enter into a further contract for services.
2.4. However, the complainant did not benefit from this agreement, on the basis that because he was in receipt of a pension from the respondent already, he was excluded from its terms. The complainant states that he is aware of other meter readers, who are in receipt of pensions from other employments, who are not so excluded. The complainant submits that the collective agreement negotiated between UNITE and the respondent is discriminatory on the ground of age.
2.5. The complainant states that when his solicitor protested his exclusion from the agreement, a previous offer from the respondent for a contract for services as a meter reader was withdrawn. This was on 24 November 2009. The complainant submits that this represents victimisation of him by the respondent.
2.6. The complainant in his submission does not state any other facts in respect of the discrimination he alleges.
3. Summary of the Respondent's Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all. It submits that the complainant availed of a voluntary severance package in 1997 at the age of 54, as part of which he received a lump sum and ongoing pay at 46.75% of his former salary, and a pro-rata payment of "credit transfers" and performance-related rewards. These payments to the complainant were to be increased in line with future salary increases for the respondent's staff. From 29.12.2003, this being the complainant's 60th birthday, until 29.12.2008 (his 65th birthday) the complainant received a pension at 46.75% of his former salary. From that date, he has been paid a full ESB pension. The complainant also received his regular retirement lump sum when he turned 60. The respondent states that the complainant's meter reader work is separate to these arrangements.
3.2. The respondent further disputes that the complainant was a full-time contract meter reader. At the peak of the work carried out by the complainant, he was issued with meter reading work for a maximum of 16 days per 41 day cycle.
3.3. The respondent further disputes that the case of the six meter readers was a test case and notes that Irish law does not provide for test cases. It further states that the complainant himself never brought a social welfare appeal to have his employment status determined.
3.4. The respondent denies that the complainant was its employee at the material time and states that he worked for the respondent on the basis of a contract for services. It further states that the complainant has not made out a case of discrimination under the Acts.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was discriminated against and victimised within the meaning of the Acts and whether he was affected by discriminatory terms in a collective agreement which applied to him. Before I examine those issues, however, I will have to make a finding as to whether I have jurisdiction to investigate them.
4.2. The following three issues arise with respect of the Tribunal's jurisdiction:
(a) Was the complainant an employee of the respondent's within the meaning of the Acts?
(b) Was the complainant's complaint brought in time pursuant to the time limits set out in S. 77(5) of the Acts?
(c) Was the complainant's claim in respect of the alleged discriminatory terms of a collective agreement correctly stated pursuant to the requirements of S. 86 of the Acts, and therefore, do I have jurisdiction to investigate it?
4.3. There is dispute between the parties as to whether the complainant was an employee of the respondent in regard to his work as a meter-reader. This dispute can be further divided into two questions: Whether the respondent is a "person" within the meaning of S. 2 of the Employment Equality Acts for the purposes of recognising a contract for services as an employment contract; and whether the nature of the complainant's work with the respondent, regardless of the terms of the contract, makes it an employment relationship.
4.4. Section 2 of the Employment Equality Acts 1998 to 2011 defines a "contract of employment" as
(a) a contract of service or apprenticeship, or
(b) any other contract whereby
(i) an individual agrees with another person personally to execute any work or service for that person
(ii) [irrelevant for the case on hand]
4.5. The respondent argues that the complainant was engaged under a contract for services in respect of his meter-reading work and is therefore not an employee within the meaning of the Acts. However, as can be seen from the provision above, contracts for services can, under some circumstances, be covered by the Acts. That said, the Acts are silent as to whether the "person" in S. 2(b)(i) has to be a natural person or whether legal persons, such as companies, are also included, and I invited submissions from both parties on that point.
4.6. The complainant's representatives submitted that in line with the previous Tribunal decision in Dr Elaine Lennon v. Dublin Writer's Festival [DEC-E2009-015], that the respondent is a corporate person and that the meter-reading contract between the complainant and the respondent is therefore one which falls under S. S. 2(b)(i) if it isn't comprehended by S. 2(a).
4.7. The respondent did not dispute that it is a legal person, but argued instead that the fact that complainant's contract allowed him to have a substitute carry out the work contracted by the respondent, and that this takes the contract out of the domain of an "agreement to personally execute" work [emphasis added by the respondent].
4.8. I am satisfied that counsel for the respondent has correctly identified what distinguishes the case on hand from the Tribunal decision cited above. The position at the Dublin Writer's festival, which was a contract for services, and for which the above complainant was an unsuccessful applicant, could only be carried out personally by any successful applicant. Applicants were interviewed by the respondent precisely to ensure that they possessed the appropriate skills, and it would not have been acceptable for the respondent if any successful applicant had suddenly decided to send a substitute.
4.9. In the contractual relationship between the complainant and the respondent in the case on hand, the respondent permitted extensive use of substitutes. In the case Electricity Supply Board v. The Minister for Social, Community and Family Affairs and Others [2006] T.I.T.R. 63, which I will deal with in more detail below, Gilligan J cites evidence provided to the Appeals Officer, that one of the respondents, a meter reader for the appellant, had in fact substituted for his wife. This evidence was not challenged before Gilligan J. I infer from this that if someone who substitutes for another contract party to such an extent that he subsequently brings a complaint in his own right, that substitution is not limited to exceptional occurrences, but indeed enjoyed by meter readers as a right to be exercised at any time, and to any extent.
4.10. Accordingly, I am satisfied that the contractual relationship between the parties in the case on hand is not comprehended by the provisions of S. 2(b)(i) of the Acts, in that services did not have to be provided "personally" within the meaning of the subsection. This in turn means I must examine whether the actual nature of the work carried out by the complainant under his contract means that it is comprehended by S. 2(a), despite contractual clauses which state that it is a contract for services.
4.11. This point has been in dispute between the respondent and its meter readers for many years, with the main forum for such disputes being the Social Welfare Appeals Office, where six such complaints were been decided between 1955. All of these decisions confirmed the status of the meter readers as being engaged under a contract for services. In August 2000, six contract meter readers referred the matter for their classification for social welfare insurance purposes again to the Department of Social Protection for a decision. The Department's Deciding Officer held again, on 15 November 2000, that the complainants were engaged under a contract for services and not a contract of service.
4.12. This decision was reversed on appeal, and the Appeals Officer found that for the purposes of social welfare insurability, the complainant contract meter readers were engaged under a contract of service. This decision was appealed by the ESB to the High Court on a point of law, resulting in the decision in Electricity Supply Board v. The Minister for Social, Community and Family Affairs and Others [2006] T.I.T.R. 63 which I have already referred to above.
4.13. Gilligan J upheld the decision of the Appeals Officer, which centered on the aspect of how much control the respondent exercises over the work of its meter readers. The meter readers are free to use a substitute, although any such substitute needs to be notified to the respondent and is then issued with an identity card by the respondent, to enable the substitute to enter the homes of customers. In the six billing periods per year, the only obligation on the meter reader is to read a meter once, and to provide one estimate. For the remaining four billing periods, the meter reader can choose to read all four, estimate all four, or combine readings and estimates as he chooses. Estimates are unpaid. Meter readers therefore are free to manage both their own time and and their earnings to some extent.
4.14. The decision of the Appeals Officer, then, focussed to a considerable extent on the introduction by the respondent of data logging equipment, which at the time was the property of the respondent (it has since become the property of the each contractor), and which replaced the filling out by the contractor of meter sheets. The Appeals Officer held, and Gilligan J upheld this finding, that the data logger technology, where the timing of the transmission of data was dictated by the respondent, as was the use of a modem and a telephone line, increased the control exercised by the respondent to such a degree that it warranted overturning a series of previous Appeals Officer decisions which had determined that the meter reader contract was a contract for services.
4.15. In my hearing of the case, Mr T., Manager of Metering and Data Services for the respondent, did give evidence on this matter. He stated that the hand-held meter reading device is put into a cradling device in the meter reader's home, from where data are transmitted to the respondent. The technology can not, and is not used, for detailed supervision of the meter readers. He stated that in fact, this technology constitutes a considerable gain in convenience and flexibility for the meter readers.
4.16. In his subsequent written statement, Mr T. described the various methods by which meter readers communicated meter readings to the respondent as follows:
4.17. Originally, meter readers had to bar mark meter reads on paper sheets which were posted to the respondent's head office, where they were scanned by an optical reader machine to the billing system.
4.18. In the early 1990s, the respondent introduced hand held meter data collection technology. The system which was in place at the time of hearing before the Appeal Officer consisted of a PC software application which was installed on 12 PC's in the respondent's premises, and a hand-held device called the Husky FS/2, which was issued to meter readers. This device had only storage capacity for the data which would be collected in a day's work, which meant that meter readers had to call to the respondent's premises before starting on their routes, to transmit the previous day's data and to upload their route for the day. This meant that the respondent had knowledge as to what specific meters had been read on any particular day, and which meters the meter reader intended on reading the next day.
4.19. Mr T. states that where meter readers were not based close to one of the respondent's offices, they were provided with modems which enabled remote access from their home or office for downloading. He goes on to say: "However this still necessitated making an appointment with their nominated ESB contact to ensure that there was someone available to service their needs while the [hand-held device] was connected. Therefore data downloads were confined to business hours."
4.20. Mr T. cites the finding of the Appeals Officer in his submission, that it was this aspect which led her to find that "the extensive data is downloaded daily and provides the ESB with a very effective monitoring mechanism. The control of his work pattern previously enjoyed by the meter readers is significantly diminished."
4.21. However, Mr T. then says, and the complainant did not challenge these technical details in any way when the submission was forwarded to him, that in 2003 the hand-held devices described above were replaced by other hand-held devices with a much larger data storage capacity. It now allows meter readers to upload the equivalent of eight days of work in one procedure and transfer those data back when the work is finished. It is also possible for meter readers to record the data on the hand-held device some time after the visit, and to note meter readings on a paper notepad or similar. Any substitute working for them could do the same. Mr T. stated that the complainant, at one point, entered in excess of 150 meter readings into his hand-held device within a 30 minute period, with an average of 12 seconds per entry. The respondent submits that it would not be possible to do this if the meter reader had to visit each customer premises to enter the data.
4.22. Furthermore, under the new system, the meter readers are not required to contact any ESB staff to assist in the process and they can initiate and complete the download process at any time of the day or week. The respondent submits that this reverts the situation, in terms of the flexibility enjoyed by the meter readers, back to where it was when the paper data sheets needed to be posted to the respondent. It was the situation which pertained during the meter reading contract entered into by the respondent with the complainant from 2006 to 2009, which is the relevant contract for determining whether the complainant was employed by the respondent within the meaning of the Acts.
4.23. I can not ignore this new evidence which was presented to me and which shows that significant technological change was introduced by the respondent since the finding of the Appeals Officer.
4.24. In Henry Denny & Sons (Ireland) Ltd v. The Minister for Social Welfare [1998 1 IR 34], the Supreme Court held that it was appropriate not only to examine the entire contractual agreement between the parties, but also the particular conditions under which work was performed. Keane J stated: "[...] in general a person will be regarded as providing his or her services under a contract of service and not as an independent contractor where he or she is performing those services for another person and not for himself or herself. The degree of control exercised over how the work is to be performed, although a factor to be taken into account, is not decisive. The inference that the person is engaged in business on his or her own account can be more readily drawn where he or she provides the necessary premises or equipment or some other form of investment, where he or she employs others to assist in the business and where the profit he or she derives from the business is dependent on the efficiency with which it is conducted by him or her."
4.25. Based on this test, one would have to say that by the time the complainant had entered the meter reading contract with the respondent which is relevant for the complaint on hand, he enjoyed great freedoms in carrying out their work:
- Beyond some minimum requirements, he was free to supply meter readings or estimates, and therefore earn money or not as he chose;
- He was free to employ a substitute as long as this substitute was notified to the respondent and issued with ID by them;
- He was free to take down data on paper or by electronic device when doing a meter reading;
- He could transmit data from and to the respondent at any time he chose.
4.26. Finally, while the respondent has not highlighted this point in its evidence, I am of the opinion that the electronic data transfer as operated at the material time must be an enormous time savings compared to the times when a meter reader would have had to fill out meter sheets on paper, which then would have been posted to the respondent. It is clear from the evidence before me that the time freed up by this technological advance is for the meter readers to use as they please, either to do other work for consideration, for the respondent or another employer, to pursue other business, or to enjoy at leisure. The technology is therefore not, as might be the case for a waged or salaried employee, a productivity tool designed to get more out of the individual worker. Neither is its primary purpose to control the meter readers. Rather, the respondent submits, and I accept, it is put in place to enable swift and precise data transmisssion from customer premises to the respondent, to reduce errors and to improve the respondent's cash flow.
4.27. Looking at the totality of the evidence, it appears to me that the complainant enjoyed, from the time of the introduction of the current meter reading technology in 2003, a degree of flexiblity, independence and freedom in carrying out his work which does not make it appropriate to characterise the relationship between the parties, as "employment" within the meaning of the Acts. As noted in paragraphs 4.7 and 4.8 above, it is not even the case that the complainant would have had an obligation on him to perform this contract for services personally.
4.28. Accordingly, I find that the complainant was not, at the time of the events which gave rise to the complaint on hand, an employee of the respondent's within the meaning of the Acts.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the complainant was not an employee of the respondent's within the meaning of S. 2 of the Employment Equality Acts 1998 to 2011, and that I therefore have no jurisdiction to investigate the matter.
______________________
Stephen Bonnlander
Equality Officer
17 December 2012