DEC-E2013-195

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

Decision DEC-E2013-195

PARTIES

Ms Agnieszka Spyra (represented by Mr Dermot Sheehan, B.L., instructed by O’Hanrahan & Co., Solicitors)

and

Ryanair Ltd (represented by Mr Frank Beatty, B.L., instructed by O’Rourke Reid Solicitors)

File References: EE/2012/141

Date of Issue: 23rd December 2013

Table of Contents

1. Claim..
2. Summary of the Complainant’s Written Submission.
3. Summary of the Respondent’s Written Submission.
4. Summary of the Written Submission of the Employment Agency.
5. Conclusions of the Equality Officer
   • Preliminary issue: Whether stopping to provide agency work is a dismissal within the meaning of the Acts
   • Main issue: Discrimination complaint
6. Decision.

Keywords: employment agency – provider of agency work – S. 8(3) – employers within the meaning of the Acts – discontinuation of agency work – dismissal within the meaning of the Acts – Citibank v. Massinde Ntoko – Dacas v. Brook Street Bureau (UK) Ltd. – Diageo Global Supply v. Mary Rooney – subconscious bias in worker appraisals – Portroe Stevedores v. Nevins, Murphy and Flood - rebuttal.

1. Claim

1.1. The case concerns a claim by Ms Agnieszka Spyra that Ryanair Ltd discriminated against her on the ground of race or nationality contrary to Section 6(2)(h) of the Employment Equality Acts 1998 to 2011, in terms of discriminatory 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 2012. A submission was received from the complainant on 18 May 2012. A submission was received from the respondent on 16 July 2012. On 25 October 2013, 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. Additional submissions were requested from the complainant on 25 October 2013 and received on 7 November 2011. The respondent’s response was received on 15 November 2011. 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 10 December 2013.

2. Summary of the Complainant’s Written Submission

2.1. The complainant states that she started to work for Ryanair, as an agency worker, from 1 October 2007. Her role was one of customer services agent. The complainant states that her employment with Ryanair was terminated on 31 October 2011, along with three other workers. One of these was Irish, one was Polish like the complainant, and one was Lithuanian. The Irish worker was subsequently taken back on. The complainant contends that this amounts to discriminatory dismissal on the ground of race.

3. Summary of the Respondent’s Written Submission

3.1. The respondent points out that it did not have a contract of employment with the complainant, and that it did not pay the complainant. It therefore disputes that it ever was her employer.

3.2. Specifically with regard to her complaint, it states that 14 staff during September and October 2011 had their assignments ended due to a seasonal downturn in business.

3.3. The respondent states that in November 2011, four positions became available in its reservations department. For these positions, the respondent would have been the direct employer. Four former agency workers, including the complainant, applied, out of a total of 160 applications. Of the three others, one was Irish and two were other nationalities. All four were offered employment, but the offer for the complainant was withdrawn following an unfavourable reference. The three other applicants took up positions with the respondent. The respondent also states that subsequent agency placements became available to the complainant in December 2011 and June 2012, which she rejected.

4. Summary of the Written Submission of the Employment Agency

4.1. Parallel proceedings were brought against the employment agency which placed the complainant with the respondent at the time of the alleged dismissal. In its written submission, that company raises a number of points that are germane to the case within. In particular, it confirms the respondent’s statement that during the months of September and October 2011, assignments were discontinued and a total of 14 workers, 11 of whom were Irish and three of whom were non-Irish nationals, were no longer offered agency work. It also confirms that after 31 October 2011, five non-Irish nationals were placed with the respondent again. It therefore disputes that nationality was a factor in these staff fluctuations as alleged.

5. Conclusions of the Equality Officer

Preliminary issue: Whether stopping to provide agency work is a dismissal within the meaning of the Acts

5.1. The Employment Equality Acts state clearly, in s. 8(3), that “in subsections (4) to (8), references to an employee include references to an agency worker and, in relation to such a worker, references to the employer include references to the provider of agency work.” This includes S. 8(6), which deals with discriminatory dismissals. I am satisfied that the within respondent is properly described as a provider of agency work to the complainant.

5.2. In terms of the provisions of the Acts, it is further relevant to note that S. 2 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 or

(ii) an individual agrees with a person carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 to do or perform personally any work or service for another person (whether or not the other person is a party to the contract),

whether the contract is express or implied and, if express, whether oral or written. [Emphasis added]

5.3. The preliminary issue for decision in this case is therefore whether ceasing to offer agency work to an agency worker can be comprehended as a dismissal within the meaning of the Acts. With regard to that question, I requested the parties to present arguments at the hearing, taking into account the Labour Court decision EED045, Citibank v. Massinde Ntoko.

5.4. In its Ntoko decision, the Labour Court does not address the above issue in any detail; indeed it appears from the text of the decision that all parties accepted from the outset that Mr Ntoko, an agency worker, was dismissed from the appellant bank, who was his provider of agency work within the meaning of the Acts.

5.5. Counsel for both sides highlighted the fact that implied contracts can also be contracts of employment. Counsel for the respondent argued that since no contract existed between the complainant and the respondent, and since “dismissal” within the meaning of the Acts requires the existence of a contract, no dismissal could have taken place when the complainant was no longer provided with agency work.

5.6. Counsel for the complainant argued that apart from the provisions of the Acts, as outlined in paragraph 5.1 above, the High Court case of Brightwater Selection (Ireland) Ltd v. Minister for Social and Family Affairs [2011] IEHC 510, is authority that an implied contract of employment can exist between a provider of agency work and an agency worker. That case itself is concerned with the obligations of an employment agency vis-à-vis the Department of Social Protection with regard to an agency worker it has under contract, which is not entirely on all fours with the question I have to address.

5.7. However, two cases quoted by Gilligan J in his decision are relevant to the case on hand. One is the decision by the English Court of Appeal in Dacas v. Brook Street Bureau (UK) Ltd. [2004] EWCA Civ 217, in which Mummery LJ stated:

I approach the question posed by this kind of case on the basis that the outcome, which would accord with practical reality and common sense, would be that, if it is legally and factually permissible to do so, the applicant has a contract, which is not a contract of service, with the employment agency and that the applicant works under an implied contract, which is a contract of service, with the end-user and is therefore an employee of the end-user with a right not to be unfairly dismissed. The objective fact and degree of control over the work done by [the applicant] at West Drive over the years is crucial. The Council in fact exercised the relevant control over her work and over her. As for mutuality of obligation, (a) the Council was under an obligation to pay for the work she did for it and she received payment in respect of the work from [the agency], and (b) [the applicant], while at West Drive, was under an obligation to do what she was told and to attend punctually at all times. [Emphasis added]

5.8. Gilligan J further cited the findings of the Labour Court in Diageo Global Supply v. Mary Rooney [2004] ELR 133, in which that court held that despite the fact that no written agreement existed, and despite the fact that her wages were being paid through an employment agency, Ms Rooney worked for the appellant company. The Labour Court found that the appellant did pay valuable consideration for the respondent’s work, and that it exercised considerable control over the day-to-day work of the respondent, as it directed the respondent as to her work at all times.

5.9. It is clear from evidence which the respondent relied on during the hearing of the complaint that the complainant was indeed under its day-to-day control with regard to how she carried out her work. Her manager gave direct evidence to that effect, and it is also apparent from the performance appraisal which the respondent carried out with the complainant in August 2011, and which will be discussed in further detail below. Nobody denied that the respondent was paying the employment agency which had placed the complainant with it consideration for her work, which was passed on to the complainant as her salary. The Managing Director of the employment agency stated that the agency had no part in the complainant’s daily management or in the complainant’s performance appraisal, and this was not contested.

5.10. From the provisions contained in the Employment Equality Acts, and which are cited in paragraph 5.1 above, it is clear that the Oireachtas sought to protect agency workers against discrimination, including discriminatory dismissal, as much as it did for permanent employees. I take this to mean that agency work may be withdrawn from agency workers by a provider of agency work only for the exigencies connected with the use of agency work on the part of an undertaking, or because of issues of personal conduct of an agency worker, but not for one of the characteristics which are protected by the Acts. I am further willing to accept, based on the evidence I have heard and the authorities that were opened to me, that an implied contract of employment within the meaning of S. 2 of the Acts existed between the complainant and the respondent, which came to an end when the respondent withdrew agency work from the complainant, thereby amounting to a dismissal within the meaning of the Acts. Accordingly, I find that I have jurisdiction to investigate whether work was withdrawn from the complainant because of her Polish nationality, that is, for a discriminatory reason.

Main issue: Discrimination complaint

5.11. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. 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.

5.12. In coming to my decision, I have considered all oral and written evidence presented to me by the parties, and I have also considered the written submission and oral evidence provided by the employment agency which placed the complainant with Ryanair.

5.13. At the hearing of the complaint, the complainant accepted that a total of 14 agency workers had work withdrawn by the respondent in September and October 2011, and that ten of them were Irish. However, she insisted that these Irish workers had only been taken on over the summer, whereas she had four years of service with the respondent. She further accepted that autumn brings a downturn in business for airlines, but stated that in previous years, she had been put on part-time work rather than having her work withdrawn. She also accepted that when she later applied for a position with the respondent, not as an agency worker but as an employee of the respondent’s, she was offered that position, until the offer was withdrawn when due to an unsatisfactory reference.

5.14. For the respondent, its Regional Manager for Ireland, Mr A., gave evidence first. He stated that 90% of Ryanair’s staff are non-Irish, as are 87% of its supervisors. The airline has two seasons: summer, which is its peak season, and autumn, winter and spring, which is its off-peak season. This is in line with other carriers and simply dictated by the demands of the tourist season. Staffing levels are adjusted accordingly, which is one reason for the use of agency staff. He stated that in 2009 and 2010, between three and four aircraft of the respondent would not be flown during off-peak, whereas in 2011, seven aircraft were grounded. He stated that this necessitated withdrawing work from long-term agency staff who had previously been accommodated with part-time work during the winter months, like the complainant.

5.15. In order to facilitate the decision-making process, performance appraisals were carried out with all check-in agents, including the complainant who had never before been appraised for her performance. The complainant scored second from the bottom. One Irish worker who scored one point lower than the complainant was nevertheless re-instated. The complainant, when confronted with her own performance appraisal and the performance appraisals of her two comparators, including the worker just mentioned, argued that the appraisals were biased in favour of her Irish comparators. Furthermore, counsel for the complainant pointed out that several categories of the assessment, such as team integration, cooperation with management, customer service (which includes points like “smiling”, wishing passengers a pleasant flight, etc.), and “general attitude”, while the same for all workers assessed, are somewhat subjective for the purpose of rating performance.

5.16. The respondent’s argument for re-instating the named Irish worker who had scored one point lower than the complainant was the relatively short service of that worker, and that it was felt by management that she had considerable potential, whereas the complainant, with her long service, should have been a better worker at the time of her appraisal.

5.17. I accept the complainant’s evidence that the first time she had sight of the performance appraisals of her comparators was at the hearing of the complaint, and I am satisfied that she was entitled in her response to same to raise the point as to whether bias in the assessment process, in favour of her Irish comparators, may have influenced the decision to withdraw work from her, but to re-instate an Irish worker who had scored lower than herself. The Labour Court, in Portroe Stevedores v, Nevins, Murphy and Flood [EDA 051], among other cases, has pointed out that

Discrimination is usually covert and often rooted in the subconscious of the discriminator. Sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware. Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, the Court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution. Finally, it must be borne in mind that the proscribed reason need not be the sole or even the principal reason for the conduct impugned; it is enough that it is a contributing cause in the sense of being a “significant influence” (see Nagarajan v London Regional Transport [1999] IRLR 572, per Lord Nicholls at 576).

5.18. It is for this reason that I requested sight of another performance appraisal from the respondent, this time from one of the four workers among the five top-scorers who were Polish nationals. It is from this evidence, as well as the respondent’s uncontroverted evidence that of the workers who were kept on during the winter, seven were Polish, one was Estonian and only two were Irish, that the respondent has successfully rebutted the presumption that its worker assessments may have been influenced by conscious or unconscious biases in favour of Irish workers. I am satisfied that when the respondent needed to withdraw agency work from a number of long-time agency staff, the complainant was selected because of her mediocre performance and that her Polish nationality played no part in this. Accordingly, her complaint of discriminatory dismissal must fail.

6. Decision

6.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that Ryanair did not discriminatorily dismiss Ms Agnieszka Spyra, by withdrawing agency work from her, within the meaning of S. 8(3) and S. 8(6) of the Employment Equality Acts 1998-2011, on the ground of her nationality contrary to S. 6(2) of the Acts.

______________________

Stephen Bonnlander

Equality Officer

December 2013