EQUALITY OFFICER'S DECISION NO: DEC-E/2013/063
PARTIES
ZIOLKOWSKA
(REPRESENTED BY MR. BRENDAN ARCHBOLD)
-V-
(1) GALLAGHER T/A AVENUE BARBERS AND
(2) GALLAGHER T/A HAIR AND BEAUTY
File No: EE/2010/155 & EE/2011/480
Date of issue: 3 July, 2013
Headnotes:Employment Equality Acts 1998- 2008 - sections 6,7, 8,14A, 19 and 29 -race- gender- equal pay- equal treatment - harassment - like work - grounds other than- correct respondent.
1. DISPUTE
1.1 This dispute involves a claim by Ms. Ewa Ziolkowska (hereafter called "the complainant"), who is a Polish national, that she was (i) discriminated against by Mr. Kieran Gallagher t/a Avenue Barbers (hereafter called "the first named respondent") on grounds of gender and race, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts in respect of her conditions of employment, (ii) harassed by the first named respondent, on grounds of gender and race, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 14A of those Acts. The complainant also contends that she performs "like work" in terms of section 7 of the Employment Equality Acts, 1998-2008 with four named comparators, who are of different nationalities and/or gender to her and she is therefore entitled to the same rate of remuneration as paid to them by the first name respondent in accordance with section 19 of those Acts (on the gender ground) and/or section 29 of those Acts (on the ground of race).
1.2 The dispute also involves a claim by the complainant that she was employed by Ms. Debbie Gallagher t/a Hair and Beauty (hereafter called "the second named respondent") and that she performs "like work" in terms of section 7 of the Employment Equality Acts, 1998-2008 with the same four named comparators as referred to in the preceding paragraph, who are of different nationalities and/or gender to her and is therefore entitled to the same rate of remuneration as paid to them by the second named respondent in accordance with section 19 of those Acts (on the gender ground) and section 29 of those Acts (on the ground of race).
1.3 The second named respondent rejects the complainant's assertion that she was employed by her. The first named respondent initially accepted that he employed the complainant and the four named comparators. He rejects the complainant's assertions that he discriminated against or harassed the complainant on the grounds cited. The first named respondent disputes the existence of "like work" between the complainant and two of the named comparators. He concedes the existence of "like work" between the complainant and the other two named comparators (who are Irish females) but argues that there are factors unconnected with the nationality of the parties which render the rates of remuneration paid to them lawful in terms of section 29(5) of the Employment Equality Acts, 1998-2008. The first named respondent subsequently resiled from his original position that he employed the complainant and the four named comparators at the relevant time.
2. BACKGROUND
2.1 The complainant states that she worked for one or other of the respondents as a barber from February, 2009 until February, 2010. She referred a complaint under the Employment Equality Acts, 1998- 2008 to the Equality Tribunal on 4 March, 2010 alleging that she was discriminated against and harassed by the first named respondent on grounds of race and gender contrary to the Acts. The complainant also claimed she performed "like work" in terms of section 7 of the Acts with four named comparators - three Irish females and a Polish male - and that she was therefore entitled to the same rate of remuneration as paid by the first named respondent to those comparators on grounds of race and/or gender in terms of section 19 and/or 29 of the Acts. The complainant referred a second complaint under the Employment Equality Acts, 1998-2008 to the Equality Tribunal on 2 June, 2011 against the second named respondent (following receipt by her of a P60 in respect of 2009 identifying that respondent as her employer for that tax-year) alleging she performed "like work" in terms of section 7 of the Acts with the same four named comparators - three Irish females and a Polish male - and that she was entitled to the same rate of remuneration as paid by the second named respondent to those comparators in terms of section 19 and/or 29 of the Acts. In accordance with his powers under the Employment Equality Acts, 1998-2011 the Director delegated the complaints to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaints commenced on the dates they were delegated to me - 10 August, 2012 in respect of the complaint against the first named respondent and 13 August, 2012 in respect of the second named respondent.
2.2 On delegation of the complaints to me I noted that neither of the respondents had engaged with the Tribunal at any stage following referral of the complaints, notwithstanding it issued the standard series of correspondence to them. As both complaints involved a claim for equal pay I decided to hold an Initial Inquiry in order to clarify the full extent of the equal pay components of the complaints, decide how best to progress my investigation and to establish a timeframe for same. The complainant's representative and both named respondents were notified by letter dated 13 August, 2012 that this Initial Inquiry would take place at the Tribunal's Office on Friday 14 September, 2012. This notification was sent by registered post to the addresses provided on the referral forms. The complainant and her representative attended at the time and date specified. Neither of the respondent's nor any representative on their behalf attended. I was satisfied that both respondents had received the written notification of the Initial Inquiry and proceeded on the day.
2.3 At the Initial Inquiry the complainant advised that she received no written contract during her period of employment but had always assumed she was employed by the first named respondent. She added that the respondents were married to each other and that whilst she worked primarily at the premises owned by the first named respondent she worked on occasion at the premises owned by the second named respondent. She added it was on the basis of this information that she referred her complaint against the first named respondent on 4 March, 2010. The complainant's representative stated that in May 2011 he received correspondence from the Revenue Commissioners enclosing a P60 for the 2009 tax year and a P45, both in respect of the complainant, which indicated that the second named respondent had been her employer. He added that in order to protect the complainant's statutory entitlements he referred the complaint against the second named respondent to the Tribunal on 2 June, 2011. He confirmed that the complaints were alternatives to each other but declined to select one over the other in terms of which the complainant wished to pursue, submitting that this was a matter for the Equality Officer to decide.
2.4 I decided that before I could consider this matter I should afford both the named respondents the opportunity to comment on it and I wrote to them separately on 3 October, 2012 providing a synopsis of the discussion at the Initial Inquiry, a copy of the P60 and P45 submitted on behalf of the complainant and a copy of my letter 13 August, 2012. This correspondence was sent to the addresses provided on the referral forms - these had been used for my letter of 13 August, 2012 and I was satisfied that correspondence had been received by the respondents. The respondents were requested to furnish any comments they wished to make on the issue by 12 October, 2012. Both letters were returned to the Tribunal by An Post undelivered on 8 October, 2012. Having considered the oral and documentary evidence adduced by, and on behalf of, the complainant and being of the opinion that I had made reasonable efforts to afford both named respondents every opportunity to engage with the Tribunal, I was of the view, on balance, that Ms. Debbie Gallagher (the second named respondent) had been the complainant's employer at the relevant time and was therefore the correct respondent in the matter. I wrote to Ms. Gallagher on 18 October, 2012 advising her of this and asked her to respond to comments made by the complainant in respect of issues connected with the equal pay component of the complaint. This correspondence was sent by registered and ordinary post. Ms. Gallagher was requested to furnish her response by 9 November, 2012. The complainant's representative and the first named respondent were apprised of my ruling in this regard by letter dated 18 October, 2012.
2.5 Ms. Gallagher e-mailed the Tribunal on 9 November, 2012 in which she stated the complainant was never employed by her and had been employed by the first named respondent. She requested a meeting with the Equality Officer to discuss the matter. Ms. Gallagher did not provide any response to the matters raised in my letter of 18 October, 2012. I wrote to her on 14 November, 2012 advising that I could not meet with her, that I had scheduled a Hearing on the complaint for the Tribunal's Offices on 19 December, 2012 and that any comments she wished to make could be made at that Hearing. I invited her again to address the matters raised in my letter of 18 October, 2012. This letter was sent by registered and ordinary post as well as e-mail (to the e-mail address contained on Ms. Gallagher's e-mail of 9 November, 2012). Ms. Gallagher wrote to the Tribunal on 17 December, 2012 confirming her attendance at the Hearing. She also advised that the first named respondent and Mr. L would attend. Ms. Gallagher restated (in this letter) that the complainant was never employed by her and was employed by the first named respondent.
2.6 The first and second named respondents attended the Hearing on 19 December, 2012 along with Mr. L, who was a business partner of Mr. Kieran Gallagher (the first named respondent). The complainant and her representative also attended. I was satisfied that new information had come to light in the course of my investigation and in accordance with my powers under section 79(1) of the Employment Equality Acts, 1998-2011 I decided to hear all persons appearing to be interested. At the Hearing both named respondents offered explanations why neither had engaged previously with the Tribunal. They also stated that whilst they were married to each other the businesses were separate trading entities and had no connection with each other. The first named respondent (Mr. Gallagher) stated unequivocally that the complainant and the four named comparators were employed by him at all times relevant to the complaint. This was confirmed by Mr. L and the second named respondent, who again stated that the complainant and comparators were never employed by her. The first named respondent stated that the financial accounts for both named respondents were prepared by the same person and that this person had included the second named respondent as the complainant's employer on the revenue documentation in error. He added that this error had not come to their attention until the Tribunal had sent them the documentation in October, 2012. The complainant's representative submitted it was not credible that such an error had occurred and neither of the respondents was aware of it. He urged the Equality Officer to proceed on the basis of his original ruling - that the second named respondent had been the complainant's employer at the relevant time.
2.7 After giving the matter some consideration I informed the parties that my original ruling on the question who the correct employer was had been reached on the basis of information adduced by the complainant only and had been made in ease of the administration of my investigation. I added that in the light of the new information on this issue furnished by the respondents at the Hearing, I was of the view that it was appropriate for me to revisit the matter. I stated that I would make a decision on the issue at the end of my investigation and that my conclusions would be set out in my written Decision on the complaints. This Decision could be appealed by either party in accordance with the statutes. I further stated that I intended to proceed with my investigation on the equal pay component of the complaints given that all parties relevant to the complaints were present at the Hearing.
2.8 The complainant confirmed it was her contention that she performed "like work" under all three paragraphs of section 7(1) of the Employment Equality Acts, 1998-2008 with four named comparators and was therefore entitled to the same rate of remuneration as paid to those comparators. She added that her claim covered the full period of her employment. It was noted that the dates of employment advanced by the complainant differed from the details contained in the P60 and P45. The complainant was adamant the dates she advanced were correct. The first named respondent relied on the details contained in the revenue documentation. The complainant stated her rate of remuneration was €95 per day from the outset of her employment until January, 2010 when it was reduced to €70 per day and the rates of remuneration of the four comparators were as follows - Ms. A and Ms. B (who are Irish) who earned €120 per day and Mr. D who earned €100 per day. The complainant was unable to say what the third female Irish comparator (Ms. C) earned but it was submitted on her behalf that she (Ms. C) earned at least the same rate of remuneration as the other two Irish comparators. The complainant's representative stated that both respondents had failed to respond to the EE2 Request for Information Form issued to each of them on behalf of the complainant and the Equality Officer was urged to draw "such inferences as seem appropriate" in accordance with section 81 of the Acts in that regard. The first named respondent took issue with all the rates of remuneration furnished by the complainant but was unable to say what he believed the rates of remuneration were. He undertook to furnish details of this as soon as possible - later in the Hearing he agreed to furnish this information when filing the job descriptions - by 25 January, 2013- but did not do so. However during the Work Inspections the first named respondent agreed the rates of remuneration in respect of three of the four comparators (he continued to dispute the rate of remuneration of Mr. D) were those advanced by the complainant. The first named respondent conceded the existence of "like work" in terms of section 7 of the Acts between the complainant and (i) Ms. B and (ii) Mr. D but argued that there were factors unconnected to the nationality and/or gender of the parties involved which rendered the rates of remuneration lawful in terms of section 29(5) and 19(5) of the Acts respectively. The first named respondent agreed to file a submission setting out his arguments in this regard by 15 February, 2013. He disputed the existence of "like work" in terms of section 7 of the Acts between the complainant and (i) Ms. A and (ii) Ms. C. Moreover, the first named respondent argued that Ms. C was not a valid comparator as the referral form incorrectly recorded her surname. He stated that further arguments on this matter would be advanced by way of written submission and advised that he would not be relying on section 29(5) in respect of these latter two comparators.
2.9 The first named respondent furnished job descriptions in respect of the complainant and the two comparators where "like work" was disputed on 24 January, 2013. The complainant had previously filed job descriptions and these documents were exchanged between the parties via the Tribunal on 29 January, 2013. In ease of the first named respondent, who was unrepresented, I wrote to him on 11 January, 2013 confirming the timetable for the remaining stages of my investigation and explained the process I would follow for same. Copies of the complainant's referral form and submission in respect of the equal treatment and harassment elements of her complaints were enclosed with this letter and he was requested to furnish submissions setting out his response to these allegations as well as the "grounds other than" arguments on the equal pay element of the complaint by 15 February, 2013. Work Inspections were scheduled for 12 February, 2013. The first named respondent gave an assurance he would have both comparators in attendance and was requested to confirm same to the Equality Officer by 31 January, 2013. The first named respondent failed to do so, despite a written reminder on 8 February, 2013 and Ms. A failed to attend at the Work Inspections. Ms. C did attend and was interviewed. At the Work Inspections the first named respondent was reminded of the 15 February, 2013 deadline for the aforementioned submissions. He did not comply with this deadline. The first named respondent e-mailed the Equality Officer on 18 February, 2013 seeking to resile from his evidence at the Hearing on 19 December, 2013 where he had stated he had employed the complainant and the comparators at all relevant times to the complaint and stated that they had, in fact, been employees of the second named respondent instead. The Final Hearing took place on 27 March, 2013 and whilst both named respondents attended no submission or other documentary evidence (a) in support of the assertions that the rates of remuneration paid to the parties were lawful in terms of section 19(5) and 29(5) of the Acts, (b) in response to the discriminatory treatment and harassment elements of the complaint and (c) in support of the arguments as to who the correct respondent was, were furnished to the Tribunal.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant states that she was employed as a barber by one of the named respondents from February, 2009 until February, 2010. She contends that during this period she performed "like work" in terms of section 7 of the Employment Equality Acts, 1998-2008 with four named comparators and is therefore entitled to the same rate of remuneration as paid by the respondent to those comparators (three Irish females and one Polish male) in accordance with section 19 and/or 29 of the Acts. It is submitted on her behalf that the respondents have failed to furnish the Tribunal with any evidence that there were grounds unconnected with either her gender or race which would enable the respondents avail of the defence available at sections 19(5) or 29(5) of the Acts.
3.2 The complainant states that over the period of her employment ten other staff were employed by the first named respondent - seven female and three males. These staff comprised four nationalities - Polish, Lithuanian, Chinese and Irish. She states that she received no written contract of employment or other documentation setting out her terms of employment in accordance with the Terms of Employment (Additional Information) Order, 1998 1. In the course of the Hearing the complainant was unable to say if any of the other employees received a written contract of employment or other documentation containing terms and conditions. It is submitted on her behalf that the respondent's failure in this regard amounts to less favourable treatment of her on grounds of gender and race contrary to the Acts.
3.3 The complainant further states that she did not receive (i) a copy of a written dismissal procedure which the respondent proposed to use in case of dismissal, as required under section 14 of the Unfair Dismissals Act, 1977, (ii) payslips, (iii) the respondent's Grievance or Disciplinary Policy and (iv) the respondent's Equality/Dignity at Work Policy during her employment. The complainant adds that she did not receive a P60 or P45 at the appropriate times and only obtained a copy of same in May 2011 from the Revenue Commissioners. In the course of the Hearing the complainant was unable to say whether or not any of the other staff employed by the respondent received any of the aforementioned documentation. It is submitted on her behalf that the respondent's failure in this regard amounts to less favourable treatment of her on grounds of gender and race contrary to the Acts.
3.4 The complainant states that she was not permitted to take the appropriate statutory rest breaks when she was rostered to work alone. She adds that she worked alone on three days per week, Ms. A worked alone on two other days and she could not take rest breaks either unless they closed the shop. In the course of the Hearing the complainant stated that staff could take the appropriate rest breaks if two employees were rostered at the same time and could provide cover. The complainant further states that the respondent failed to give her five days' paid annual leave in respect of 2009, which she was entitled to. In the course of the Hearing the complainant was unable to say if other staff were treated differently as regards paid annual leave. It is submitted on her behalf that this respondent's failure in respect of these issues amount to less favourable treatment of her on grounds of gender and race contrary to the Acts. The complainant seeks to rely on the Determination of the Labour Court in A Company v A Worker 2 in this regard (and the issues in the previous two paragraphs) and submits that the "complete non-implementation of relevant legislation [by the respondent] was due to the fact that it regarded the worker as someone of a different nationality who would not have had the capability to stand on their legal rights and that by its actions it discriminated against her on the grounds of her nationality." is relevant to the instant case.
3.5 The complainant states that she received a text message from the first named respondent in late January/early February, 2010 directing her to report for a meeting with Mr. L at the shop in Newbridge. She adds that when she attended the meeting Mr. L asked if she knew anything about the unauthorized opening of an envelope containing another employee's wages at the store in Naas, where the complainant worked. She states that she informed Mr. L she had been off work on the day in question and knew nothing about the matter. The complainant rejects the assertion that any other issue was raised with her by Mr. L. The complainant states that nonetheless she was instructed she was to report to the Newbridge shop in future, that her working hours were reduced from five days per week to three days per week and her daily rate of pay was reduced from €95 per day to €70. It is submitted on the complainant's behalf that she was subjected to sanction without the operation of fair procedures or an appeals process, neither of which the respondent had in operation, and that this treatment of her amounts to discrimination on grounds on gender and race contrary to the Employment Equality Acts, 1998-2008. It is further submitted that this also constitutes harassment of the complainant contrary to section 14A of the Acts.
3.6 The complainant states that she cleaned the windows at the shop in Naas on a regular basis and generally used old newspaper for the task. She adds that on one occasion she used tissues from the shop to clean the windows and Mr. L chastised her for doing so. The complainant adds that on another occasion Mr. L asked her if she knew anything about a missing "gown" from the shop. In the course of the Hearing the complainant stated that he did not use any abusive, derogatory or offensive language (in terms of her gender or nationality) on either occasion. It is submitted on her behalf that these alleged incidents constitute harassment of the complainant on grounds of gender and race contrary to section 14A of the Employment Equality Acts, 1998-2008.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The first named respondent accepts that the complainant performed "like work" in terms of section 7 of the Employment Equality Acts, 1998-2008 with two of the named comparators -Ms. B and Mr. D - but submits that there are factors unconnected to the nationality and/or gender of the parties involved which rendered the rates of remuneration lawful in terms of section 29(5) and 19(5) of the Acts respectively. However, it failed to furnish any evidence in support of this contention during the investigation. It disputes the existence of "like work" in terms of section 7 of the Acts between the complainant and (i) Ms. A and (ii) Ms. C. Moreover, it argues that Ms. C was not a valid comparator as the referral form incorrectly recorded her surname but offered no further arguments on this matter in the course of the investigation. The first named respondent further advised that he would not be relying on section 29(5) in respect of these latter two comparators. At the Hearing on 19 December, 2012 the first named respondent rejected the rates of remuneration (in respect of the four comparators) submitted by the respondent but was unable to offer any evidence to the contrary. At the Work Inspections on 12 February, 2013 he accepted the rates of remuneration previously advanced by the complainant except in respect of Mr. D. He subsequently failed to furnish any contradictory evidence in support of this position.
4.2 The first named respondent accepts that the complainant did not receive a contract of employment, statement of terms or conditions, dismissal procedure or pay slips as asserted in her complaint. He adds however, that none of his employees received this documentation. He further states that he did not have either a Grievance/Disciplinary Policy or Equality/Dignity at Work Policy. He accepts that it is quite possible the complainant did not receive a P60 or P45 at the relevant time but states he expected the person doing the accounts would handle such matters and if there were any issues in that regard he was not aware of same and definitely did not instruct that person to treat the complainant differently to any other employee. The first named respondent rejects the assertion that the complainant was unable to take rest breaks. He accepts that working in the shop alone might present difficulties for an employee taking a break but states that he told staff to close the shop up if necessary. He adds that this occurred and there were several occasions when he personally saw a notice in the window saying "back in twenty minutes". The first named respondent states that there was no policy in operation as regards annual leave and accepts it was possible the complainant experienced issues with her annual leave as alleged. However, he rejects the assertion that it was connected with her gender or race.
4.3 The first named respondent rejects the assertion that the complainant was harassed on the grounds cited contrary to the Acts. He states that in January, 2010 Mr. L suspected the complainant was checking the rate of pay of other staff and in doing so was tampering with their wage envelopes. The first named respondent adds that Mr. L also suspected that the complainant had failed to ring a job on the cash register and had pocketed the money involved. The first named respondent adds that Mr. L confronted the complainant about these matters and as a result of same he relocated the complainant back to the Newbridge shop, where he could monitor her and in addition reduced her hours and daily rate of remuneration. The first named respondent states that Mr. L made this decision of his own volition and he did not have any role in same. He adds that in any event the sanction had nothing to do with the complainant's gender or nationality. The first named respondent states that he knows nothing about the window cleaning or "gown" incidents and states that in any event the actions of Mr. L were not connected in way with the complainant's gender or nationality.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me are (i) who is the correct respondent for the purposes of the complaints, (ii) whether or not that respondent discriminated against the complainant on grounds of race and/or gender, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts in respect of her conditions of employment, (iii) whether or not that respondent harassed the complainant on grounds of race and/or gender, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 14A of those Acts and (iv) whether or not the complainant performed "like work" in terms of section 7 of the Employment Equality Acts, 1998-2008 with four named comparators and if so, whether or not she is entitled to the same rate of remuneration as paid by the respondent to those comparators in accordance with section 19 and/or section 29 of those Acts. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.
5.2 The first matter I must determine is who is the correct respondent for the purposes of these complaints. The complainant states that she did not receive a written contract of employment, that she worked primarily at premises owned by the first named respondent, that she received instructions from that respondent (or on his behalf from Mr. L) during her period of employment. The first named respondent accepted the complainant's evidence in this regard as accurate. The complainant states it was on the basis of the foregoing that she assumed the first named respondent was her employer and referred her first complaint to the Tribunal on 4 March, 2010, an assumption I find perfectly understandable given the information (or lack thereof) which she had at that time and the circumstances which prevailed. She adds that she referred the subsequent complaint to the Tribunal on 2 June, 2011 following receipt of documentation from the Revenue Commissioners indicating the second named respondent had been her employer. The complaint against the first named respondent claims that respondent (i) discriminated against and (ii) harassed the complainant on grounds of race and/or gender contrary to the Employment Equality Acts, 1998-2008 contrary to those Acts. It also encompasses a claim for equal pay on the same discriminatory grounds. The complaint against the second named respondent is restricted to the claim for equal pay. Consequently, any decision on the question of who the complainant was employed by during the relevant period goes to the parameters of the complaint and the remedy available to the complainant.
5.3 Section 2 of the Employment Equality Acts, 1998-2008 provides as follows -
" 'employee'...means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment",
" 'employer'..... means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or where the employment has ceased, entered into or worked under) a contract of employment",
" 'contract of employment' means....
(a) a contract of service or apprenticeship......
whether the contract is or implied and, if express, whether oral or written.".
5.4 On delegation of the complaints to me by the Director in August, 2012 I noted neither of the named respondents had engaged with the Tribunal at all, despite significant correspondence from the Tribunal to both in respect of the complaints. As the complaints involved claims of equal pay I decided to hold an Initial Inquiry, in accordance with my standard practice for such claims - a practice which is in line with the procedures of the Tribunal - in order to clarify the full extent of the equal pay components of the complaints, decide how best to progress my investigation and establish a timeframe for same. I informed the complainant and both named respondent s of the arrangements by registered post. Both respondents failed to attend and as I was satisfied they had received notification of same, I proceeded on the day. The complainant's representative opened a P45 and P60 to the Tribunal which he had received from the Revenue Commissioners. These documents indicated that the complainant had been employed by the second named respondent. Given the statutory definitions set out in the preceding paragraph and the nature of the two complaints, it was clear the complainant could not maintain her complaints against both respondents simultaneously and when I sought clarification from the complainant's representative which complaint he wished to pursue he declined to select one respondent over the other and stated he would leave the matter for this Tribunal to decide upon. I wrote to both named respondents on 3 October, 2012 giving them the opportunity to furnish comments on the issue but both letters were returned undelivered to the Tribunal within the week. I was of the view that I had made all reasonable efforts to engage with the respondents - as had the Tribunal in general - and both respondents had continuously failed to engage with it at any level. I formed the opinion, primarily based on the documentation from the Revenue Commissioners, that the complainant had been employed by the second named respondent at the time relevant to her complaint. I advised the parties of my conclusion on this matter (in writing on 18 October, 2012) and gave the second named respondent an opportunity to comment and reply to issues connected with the equal pay element of the complaint.
5.5 The second named respondent e-mailed me on 9 November, 2012, the first occasion either of the named respondents made contact with the Tribunal, in which she sought to meet with me and stated that she was never the complainant's employer, adding that the first named respondent had employed her. Both respondents attended at the Hearing on 19 December, 2012, along with Mr. L who is a business partner of the first named respondent. At this Hearing the respondents advanced an explanation as to why they had failed to engage with the Tribunal prior to November, 2012. They stressed that their respective businesses were independent of each other at all times. The second named respondent restated her comment that she never employed the complainant. The first named respondent unequivocally stated in evidence that the complainant and the four named comparators were employed by him between February, 2009 and February, 2010 - the period relevant to the complaints. This evidence was confirmed by Mr. L. I note this evidence is consistent with the contents of the letter of 17 December, 2012 from the second named respondent to the Tribunal. Moreover, I note the response of Ms. C at the Work Inspections when she stated that she considered both herself and the complainant to have been employees of the first named respondent.
5.6 At the Hearing both respondents stated that the second named respondent had been included as the complainant's employer on the revenue documentation in error by the person who completed the financial accounts of both business and that they were not aware of it until the Tribunal brought it to their attention in the course of the investigation process. Whilst this explanation might appear at first glance to be somewhat far-fetched I am satisfied, on the basis of the attitude displayed and comments made by both respondents in the course of my investigation, that it is entirely consistent with the lack of diligence and regard which the first named respondent in particular, applied to employment related issues in their respective businesses. In addition, I view the attempt by the first named respondent (subsequent to the Work Inspections) to resile from the evidence he gave at the Hearing in December, 2012 (that he employed the complainant and comparators) to be an example of the rather simplistic view he adopted that if he did not engage with the Tribunal the matter would merely disappear. As I stated at paragraph 5.4 above I had formed the view, prior to both respondents engaging with the Tribunal, that the second named respondent had been the complainant's employer during the relevant period. This opinion was reached on the basis of evidence adduced by the complainant only. It was a preliminary ruling which was made in ease of my investigation. When the respondents engaged with the Tribunal at the Hearing on 19 December, 2012 I considered it appropriate, in accordance with section 79(1) of the Employment Equality Acts, 1998-2008 to hear their evidence and having done so, I considered it appropriate to revisit the preliminary ruling I had previously made.
5.7 From the moment the respondents engaged with this Tribunal they have consistently maintained that the first named respondent employed the complainant and the four named comparators, save for the occasion after the Work Inspections, which I have dealt with in the previous paragraph. This position was confirmed by both Mr. L and Ms. C on separate occasions in the course of my investigation. It is noteworthy that the complainant was of that same view until she received the documentation from the Revenue Commissioners. Having evaluated all of the evidence adduced by the parties I find, on balance, that the first named respondent was the complainant's employer, in terms of section 2 of the Acts, for the full period encompassed by her complaint. I further find that the first named respondent was also the employer (in terms of section 2 of the Acts) of the four named comparators for the purposes of the equal pay element of the complaint. Consequently, it is the complaint against the first named employment that is the subject of the remainder of this Decision.
5.8 Section 85A of the Employment Equality Acts 1998- 2008 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainant to prove, on balance of probabilities, the primary facts upon which she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required her case cannot succeed.
5.9 In Melbury Developments v Arturs Valpetters 3 the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a 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". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule". That Court more recently extended this analysis 4 when it affirmed the approach adopted by this Tribunal in Businkas v Eupat Ltd 5 that one of the facts which a complainant must establish is that there was a difference in treatment between him/her and another person (see Glasgow City Council v Zafar [1998] 2 All ER 953) before the burden of proof shifts to the respondent. On the basis of the complainant's own evidence there were ten other employees comprising Polish, Lithuanian, Chinese and Irish nationals engaged by the respondent during their periods of employment, seven of whom were female and three of whom were male.
5.10 I will deal with the equal pay claim first. The complainant contends that she is entitled to the same rate of remuneration as paid by the respondent to four named comparators - Ms. A, Ms. B and Ms. C (all Irish) and Mr. D (who is Polish) in accordance with the Acts. At the Hearing on 19 December, 2012 the first named respondent accepted the existence of "like work" in terms of section 7 of the Acts between the complainant and both Ms. B and Mr. D, although he argued that the rates of pay were lawful in accordance with section 19(5) and section 29(5) of the Acts. Despite being afforded a number of opportunities to furnish details of his arguments in this regard the first named respondent failed to do so. At the same Hearing the first named respondent also took issue with the rates of remuneration paid to the complainant and Ms. B but retracted his objection in this regard on the morning of the Work Inspection. Consequently, I am satisfied that (i) the complainant received a daily rate of €95 from the beginning of her employment until January, 2010 when it was reduced to €70 per day and (ii) Ms. B received a daily rate of €120. In light of the first named respondent's own evidence that (i) the complainant and Ms. B performed "like work" in terms of section 7 of the Acts, (ii) Ms. B received a higher rate of remuneration to the complainant for this work and his failure to furnish any details in support of his arguments that these rates of remuneration were lawful in terms of the relevant provisions of the Acts, I find that the complainant is entitled to the same rate of remuneration as paid by the respondent to Ms. B for the full duration of her (the complainant's) employment in accordance with section 29 of the Employment Equality Acts, 1998-2011. As Ms. B's rate of remuneration (€120 per day) is the maximum rate accepted by the first named respondent to have applied to the comparators it is unnecessary to address the complainant's claim in terms of the other three comparators. I note there is some dispute between the parties as regards the complainant's period of employment. However, on balance I prefer the complainant's evidence on this issue and I am satisfied that she was employed by the first named respondent from 22 February, 2009 until 24 February, 2010.
5.11 I shall now examine the equal treatment elements of the complainant's claim. Section 6(1) of the Employment Equality Acts, 1998 - 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) of the Acts defines the discriminatory ground of race as follows - "as between any two persons ..... that they are of different race, colour, nationality or ethnic or national origins..." and the grounds of gender where "one is a woman and the other is a man". It follows therefore that in the instant case the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because she is Polish or because she is a woman - on the gender ground.
5.12 It is common case that the complainant received no written contract of employment or other documentation setting out her terms of employment in accordance with the Terms of Employment (Additional Information) Order, 1998 6. 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 (Additional Information) Order, 1998 7. Enforcement of rights under that Regulation rests with the Rights Commissioner (at first instance) in accordance with the appropriate primary legislation and not this Tribunal. The complainant was unable to say whether or not any other employees who were engaged by the first named respondent during her period of employment received such documentation. Consequently, I am not satisfied that she has established facts from which an inference of less favourable treatment on grounds of race or gender can be presumed and this element of her complaint cannot succeed.
5.13 It is also common case that the complainant did not receive (i) a copy of a written dismissal procedure which the respondent proposed to use in case of dismissal, as required under section 14 of the Unfair Dismissals Act, 1977, (ii) payslips, (iii) the respondent's Grievance or Disciplinary Policy and (iv) the respondent's Equality/Dignity at Work Policy, during her employment. As regards the first two items listed any remedy for the failure on the respondent's part rests with another forum and not this Tribunal. There is no statutory obligation on an employer to have a Grievance/Disciplinary Policy or Dignity at Work Policy in existence. However, the importance of operating such policies is evident in circumstances where an employer is required to produce a defence against claims under unfair dismissal legislation and employment equality legislation in particular. The complainant was unable to say whether or not any other employees who were engaged by the first named respondent during her period of employment received such documentation. Consequently, I am not satisfied that she has discharged the initial probative burden required of her and this element of her complaint fails.
5.14 I am satisfied that the complainant did not receive her P60 and P45 at the appropriate times. However, the failure of the respondent to provide her with this documentation at those particular times (I note the complainant obtained them subsequently), is not of itself, an incident of discriminatory treatment. The complainant was unable to identify another employee who was treated differently in similar circumstances. Having considered all of the evidence adduced during my investigation and from my observation of the first named respondent during this time, it is clear to me that he had a total disregard for his obligations under employment legislation and the revenue code. I am therefore satisfied, on balance, that he would have treated any other employee in the same manner as the complainant and consequently no difference in treatment arises. It is submitted on behalf of the complainant that the complete non- implementation of the various employment rights statutes by the first named respondent is a fact from which an inference of less favourable treatment arises and she relies on the Labour Court Determination in A Company v A Worker 8 in this regard. I do not accept this proposition as the circumstances in that case can be distinguished from those in the instant case.
5.15 In A Company v A Worker9 the complainant had arrived in Ireland on a work permit on the understanding she was to work in a nursing home owned by the respondent and when she arrived she was instead offered employment as an assembly line worker in a factory owned by that respondent. The complainant believed she was working contrary to the terms of her work permit and was therefore working illegally in this country. In addition, the Labour Court found that that the respondent did nothing to ease her concerns in this regard and had no intention of employing her in the nursing home, as originally planned. It also found that the respondent was involved in continuing to circulate rumours that the complainant was under investigation by the Gardaí for alleged involvement in prostitution when it knew this was clearly not the case. The Court held that the treatment of the complainant by the respondent, along with the almost complete non-implementation of relevant legislation, gave rise to an inference of discrimination on grounds of race. In the instant case the complainant had no such threats. She was legally entitled to work in Ireland without a work permit, in fact she was here since 2004 and had held three other jobs during that time. I therefore find that the Determination in A Company v A Worker10 cannot avail the complainant.
5.16 The complainant contends that she was not permitted to take rest breaks when she worked alone in the shop and submits that this amounts to less favourable treatment of her on grounds of gender and race contrary to the Acts. Having carefully evaluated the evidence adduced by the parties I am satisfied it was common practice that staff were unable to take breaks when working alone. However, the complainant's remedy for any failure of the respondent in this regard rests under the organisation of working time legislation and is not a matter under the remit of this Tribunal. The complainant states that Ms. A, who is Irish, was treated in similar fashion, therefore she has failed to establish a prima facie of less favourable treatment on grounds of race. She was unable to identify a male colleague who was treated differently therefore her complaint on the gender ground is an assertion on her part. As previously stated I am satisfied that the first named respondent displayed a total disregard for employment rights of employees and I find it highly unlikely that he treated male employees any differently. In light of the foregoing and having regard to the Labour Court Determination in Melbury Developments v Arturs Valpetters 11 I can find no basis upon which to elevate the complainant's assertions on this matter to facts from which an inference of gender discrimination can be drawn and this element of her complaint fails. The complainant makes similar allegations of less favourable treatment on the two grounds cited in respect of a failure by the first named respondent to pay her for five days' annual leave which she was entitled to. As stated above her remedy for any failure by the respondent in this regard is governed by the organisation of working time legislation and does not rest with this Tribunal. I have considered the evidence adduced by the parties on this matter and find that the complainant has failed to establish a prim facie case of less favourable treatment on both discriminatory grounds and this element of her complaint cannot therefore succeed.
5.17 The complainant submits that the disciplinary process and sanction she was subjected to in late January/early February, 2010 amounts to (i) less favourable treatment of her and (ii) harassment of her on both discriminatory grounds cited contrary to the Acts. In A School v A Worker12 the Labour Court stated "that as a matter of principle the complainant cannot rely on the same facts to obtain redress under more than one head of liability under the Acts". I shall therefore deal with these elements as if they were pleaded in the alternative. It is common case that the complainant was sanctioned by Mr. L in January/February, 2010 and as a result of this sanction she was relocated to the Newbridge shop, had her hours reduced and her daily rate of remuneration was cut. It is also common case that the primary reason for this was because Mr. L believed the complainant had tampered with the envelope containing the wages of a colleague. In the course of the Hearing the first named respondent effectively sought to abdicate any responsibility for Mr. L's behaviour - stating he (Mr. L) had acted of his own volition. However, I am satisfied that Mr. L was acting in the course of his employment and consequently, the first named respondent is liable for his actions in accordance with section 15 of the Acts. There is dispute between the parties as to whether or not any other issues were raised by Mr. L during this discussion. However, on balance I prefer the complainant's version of events and find that the discussion concerned the single issue of tampering with the wage envelope. It is not the role of this Tribunal to determine whether or not the process was fair and the sanction reasonable. Rather it is my task to determine, on balance of probabilities, whether or not the behaviour complained of was tainted in anyway whatsoever, by either (or both) of the discriminatory grounds cited. Having carefully considered the evidence adduced by the parties I find that the complainant has failed to establish any facts from which it could be inferred that the treatment of her amounted to less favourable treatment on the basis of her Polish nationality or because she is a woman. Consequently, this element of her complaint fails.
5.18 The complainant also contends that the above incident constitutes unlawful harassment of her on grounds of gender and/or race contrary to the Acts. Section 14A of the Acts defines harassment as follows:
" ...any form of unwanted conduct related to any of the discriminatory grounds,...being conduct which ....has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.".
Having carefully considered the evidence adduced by the complainant on this matter it is clear that the complainant considered the actions of Mr. L as a personal affront to her. However, I am not satisfied that the incident amounts to behaviour which falls within the above definition on either of the two grounds cited. The complainant refers to two other alleged incidents which she submits amount to harassment on the same two grounds. The first of these involves cleaning windows and the second involves an inquiry about a "gown" which belonged to the business. I am satisfied that the incidents took place as alleged. However, it seems reasonable to me that Mr. L might take issue with the complainant for using tissues intended for customer use to clean the shop window, given the task was normally completed using old newspaper and her actions could be viewed as extravagant. Similarly, I consider it reasonable that he made legitimate inquiries about the location of business property when he asked her about the gown. In the course of the Hearing on 27 March, 2013 the complainant stated that Mr. L did not use any language which she considered to be offensive on either of the discriminatory grounds cited. In light of the foregoing I find that the complainant has failed to establish a prima facie case of harassment on grounds of gender and or race and this element of her complaint therefore fails.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998 - 2011 I issue the following decision. I find that -
(i) the complainant performed "like work" in terms of section 7 of the Employment Equality Acts, 1998-2008 with Ms. B and is therefore entitled to the same rate of remuneration as paid by the respondent to Ms. B in accordance with section 29 of those Acts, for the period 22 February, 2009- 24 February, 2010. (ii) the complainant has failed to establish a prima facie case of discrimination of grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts in relation to her conditions of employment.
(iii) the complainant has failed to establish a prima facie case of discrimination of grounds of gender in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts in relation to her conditions of employment.
(iv) the complainant has failed to establish a prima facie case of harassment on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 14A of those Acts.
(v) the complainant has failed to establish a prima facie case of harassment on grounds of gender in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 14A of those Acts.
6.2 In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2011 I order that the respondent pay the complainant by way of arrears of remuneration, the difference between her daily rate of remuneration and that paid to Ms. B for the period 22 February, 2009 until 24 February, 2010.
_______________________________________
Vivian Jackson
Equality Officer
3 July, 2013
Footnotes:
1 SI 49/1998
2 EED 024
3 EDA 0917
4Arturas Businkas v Eupat Ltd (In Liquidation) EDA103
5 DEC-E2009-039
6 SI 49/1998
7 Ibid
8 EED 024
9 Ibid
10 Ibid
11 EDA 0917
12 EDA 122