DEC-E2013-159

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

Decision DEC-E2013-159

PARTIES

Maria Carmen Poveda Valera

-V-

Menclo Ltd t/a The Swing Room

File Reference: EE/2011/690

Date of Issue: 26thNovember 2013

Keywords: Employment Equality Acts 1998-2011 - direct discrimination - Section 6(1), less favourable treatment -, Section 6(2)(h) – race ground, Section 8(1) - conditions of employment, Section 7 – like work, Section 29 – equal pay, Section 85A – burden of proof, prima facie case.

1. Dispute

This dispute involves a claim by a complainant that she was discriminated against by the above named respondent on the race ground in terms of section 6(1) & 6(2)(h) and contrary to section 8 of the Employment Equality Acts, in relation to her conditions of employment. The complainant also claims equal pay in terms of Section 7 and Section 29 of the Acts with a named comparator.

The complainant referred a complaint under the Employment Equality Acts 1998 - 2011 to the Equality Tribunal on the 16th September 2010 alleging that the respondent discriminated against her on the race grounds contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, as amended, the Director delegated the case on the 27th of September, 2013 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from the complainant on the 14th March 2011 and there was no response from the respondent. A hearing on the complaint was held on the 23rd October 2011 and the respondent did not attend.

2 Summary of the Complainant's case

2.1 The complainant is a Spanish national and was employed on the 4th of April 2009 as a waitress in the respondent’s coffee shop in Letterkenny. The complainant said that she is an experienced waitress having worked in a bar in Spain and also in a hotel in Ireland. She said that the owner and manager, Ms. A. Mc, interviewed her for the position and employed her, first on a part-time basis and after a few months she was taken on full time. The complainant said that she was treated differently to the other waitresses who were all Irish. She said that she could not understand why she was always singled out for different treatment. She concluded it must have related to her different ethnic background. She stated at Halloween 2009, Ms. A. Mc instructed all the staff to put on face paint for the day. She explained to Ms. A. Mc that she did not celebrate Halloween but she insisted that it was obligatory for her to wear face paint. The complainant said that she put on make up with some light glitter but Ms. A. Mc was not happy and told her that there would be consequences for her if she did not paint her face. The complainant said that she took this to mean dismissal. She said that she felt very intimidated and harassed by these actions and she believed that Ms. A. Mc showed no respect or consideration for her particularly as the incident took place in front of other staff members.

2.2 In February 2010 she enquired from another member of staff how the tips were divided up. Later that day Ms. A. Mc called her aside and told her she was not to discuss how the tips were divided as other members of staff were upset by the enquiry. Ms. A. Mc told her she should be grateful for the job and the tips. The complainant said that she tried to explain to her that she was just asking out of curiosity but Ms. A. Mc would not allow her to explain. On another occasion Ms. A. Mc came into the coffee shop and the dishes were piled up at the dishwasher. The complainant said that she was clearing the tables and there were 2 other waitresses standing near the dishwasher talking. She called her to the store room and gave out to her in a stern tone about not putting the dishes in the dishwasher. The complainant said that she was the only waitress spoken to. She said that she was singled out when the other waitress were equally responsible for doing all the duties including putting the dishes in the dishwasher. The complainant said that she plucked up the courage and challenged Ms. A. Mc on this point and it was only then that she called a meeting of all the staff and advised them that everyone had equal responsibility for all the duties.

2.3 On another occasion the complainant said that she was on duty serving customers with another waitress (Ms. B) and Ms. A. Mc’s brother (Mr. J. Mc.) came into the coffee shop. She was due to serve him as he was the next customer waiting in the line. He said to her “leave it Carmen” and he went on to say that Ms. B would serve him. The complainant said that she felt humiliated by this treatment and he made her feel as if she was not good enough to serve him.

In June 2010 Ms. A. Mc informed the staff she was going to America and her father and two brothers would be taking over the running of the business. The complainant said that Ms. A. Mc spoke to her and said that she was leaving the business in the hands of the staff and her family and her greatest concern was that she felt that the complainant could be a problematic issue for the business.

2.4 After Ms. A. Mc left for America the staff were informed that the business was being restructured and she was called to an individual meeting with the new management team. She was told at that meeting that her hourly rate would be reduced from €8.80 to €8.65. She said that she was treated badly at the meeting and when she objected to the reduction in her hourly rate she discovered she was on a lower rate than the other waitresses. She told them she could not understand why she was on the lowest rate for a year and a half and now they wanted to reduce her rate further. Following the meetings with each member of staff they were advised that they would have to give a response as to whether or not they were going to accept the new working conditions by the close of business on the 23rd July 2010. The complainant said that she decided to accept the new conditions because it would be difficult to secure new employment and it was better to be working than being unemployed. Ms. A’s brother, Mr. J. Mc and a member of the management team came to the coffee shop while the complainant was on duty on the 23rd of July. Other members of staff spoke to him and told him that they were not accepting the new terms and conditions. The complainant said that she was busy serving customers but he made no attempt to talk to her. All the other members of staff commented that it was strange that he made no effort to speak to her. Ms B was on holidays and he consulted her by telephone. The complainant said that she felt she was singled out for different treatment and not given the same opportunity to accept or reject the new conditions. The complainant said that Mr. J. Mc came into the coffee shop on the 24th of July 2010 and invited her to a meeting the following day at 7:30pm. Later that evening she enquired of him the purpose of the meeting to which he replied “about 20 minutes”. She said that she was embarrassed by the response. She said that she was insulted by it and she believed that he said this to her because English is not her first language. She submitted that she always treated him and his family with respect and she can only conclude that the reason he appeared to have a problem with her was connected to her ethnic origin. She said that she never saw him treat other staff members in this manner.

2.5 On the 25th of July the staff had a meeting with the respondent and they were informed that they were being made redundant. The complainant said that she tried to discuss the matter with the respondent but she was not given an opportunity nor was she given an opportunity to say whether she was going to accept the new terms and conditions of employment. The coffee shop opened the following week with new staff. She approached the respondent a number of days later and she was informed that all the staff had been replaced by cheaper staff and if she wanted to discuss the matter further she would have to go through a solicitor. In relation to the dismissal the complainant referred the matter to the E.A.T.

2.6 Equal Pay

The complainant said that she did the exact same duties as three named comparators. Ms. B said in evidence that she did exactly the same duties as the complainant and she was of the opinion the complainant was treated differently to the other members of staff. The complainant also provided a written statement from Ms D, in that letter she stated that, 5 years prior to taking up her position in the coffee shop; she worked as a waitress for 6 weeks. She also said that she was employed after the complainant and she was paid 9.25 per hour and that she carried out the very same duties as the complainant.

2.7 Ms. B gave evidence that she worked alongside the complainant and they both did the same work. She said that she could not understand why Ms. A singled out the complainant for different treatment than the other staff. She said that the complainant was a very good worker and did not deserve the treatment. She said that Ms. A would pull the complainant aside and give out to her without sufficient reason and when this happened she would feel embarrassed for the complainant. She said that Ms. B’s brother also treated the complainant badly and did not have time for her. He regarded her as a nuisance because he did not understand her Spanish accent. She also confirmed that he did not want the complainant to serve him and she said that the complainant was very upset by this incident. Ms. B said that she could not understand why the complainant was paid the lowest rate because she was a very good worker and had experience before she came to work for the respondent. She said that Ms. D was paid higher than the complainant even though she had very little experience as a
waitress.

2.8 Ms. D said in a written statement that when she was employed as a waitress she had very little experience because she had worked previously as a legal secretary and child minder. She said that she was paid 25 per hour. She said that it was her belief that the complainant was treated differently than other staff members during her employment despite the fact that she did the same work as every other staff member

Respondent’s Case

The respondent did not attend the hearing. The respondent was notified of the hearing by registered post by letter dated 9th of August 2010 and that letter was delivered on the 14th of August 2013.

4. Conclusions of the Equality Officer

4.1 Preliminary issue

The complainant requested to join Key Clos Ltd t/a The Swing Room as the respondent. The complainant said that she was employed by Menclo Ltd t/a Swing Room up until her employment terminated on the 1st of August 2010. The respondent let all the staff go on that day. They reopened immediately employing new staff and the coffee shop is continuing to trade. In December 2011 she was awarded compensation by the EAT in respect of her dismissal which the respondent has failed to pay. In March 2012 she received correspondence from her solicitor to say that the records of the CRO indicate that the Swing Room as a business name has now been registered to Key Clos Ltd since December 2010.

I cannot accept the application because it is clear from the complainant’s documentation that she was employed by Menclo Ltd t/a the Swing Room up to the time her employment terminated on the 1st of August 2010 and Key Clos Ltd was not at any time her employer. In any case any complaint the complainant has against Key Clos Ltd is outside the statutory time limit set out in Section 77 for making such a complaint.

4.2 In this case, I must consider the complainant's claim that the respondent directly discriminated against the complainant on the race ground in terms of section 6(1)(a) and 6(2)(h) of the Employment Equality Acts in contravention of sec 8 of the Acts in relation conditions of employment. I must also consider the complainant's claim that the respondent discriminated against her on the race ground in terms of section 7(1) of the Employment Equality Acts, in contravention of section 29 of the Acts and decide if the complainant was engaged in like work with two named comparators and entitled to equal pay in accordance with section 29 of the Acts.

It is a matter for the complainant in the first instant to establish a prima facie case of discriminatory treatment. It requires the complainant to establish facts from which it can be inferred that she was discriminated against on the above mentioned grounds. It is only when he has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.

4.3 The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell DEE 011, 15th February 2001 considered the extent of the evidential burden which a complainant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:

“.... “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.”

The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that she was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.

Section 85A. of the Employment Equality Acts 1998-2011 as amended sets out the burden of proof as follows:

(1) Where in any proceedings facts are established by or

on behalf of a complainant from which it may be presumed that

there has been discrimination in relation to her or her, it is for the

respondent to prove the contrary.

4.4 In considering Section 85A, as amended, the Labour Court stated in the case of Cork City Council v Kieran McCarthy, Determination No. EDA0821, that:

"Section 85A of the Act, as amended now provides for the allocation of the probative burden as between the parties. It provides, in effect, that where facts are established by or on behalf of a Complainant from which discrimination can be inferred it shall be for the Respondent to prove the absence of discrimination.

The Labour Court went on to say in that case:

"The type and range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may be appropriately be drawn to explain a particular set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can be drawn from those facts."

4.5 I am now going to consider the evidence in the light of the above and to determine whether the complainant has established a prima facie case. Section 6(1) of the Employment Equality Acts provides:

"….. discrimination shall be taken to occur –

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) (in this Act referred to as the ‘discriminatory grounds’)"

Section 6(2)(h) provides that as between any two persons, the discriminatory grounds are, inter alia:

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as "the ground of race"),

This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. The first matter is the claim of discriminatory treatment in relation to conditions of employment. The complainant states that the respondent discriminated against her and treated her differently than the other employees who were all Irish as outlined above. The complainant submitted evidence of her pay and that of her named comparator. Shecontends that he performs "like work" with named Irish comparators in terms of section 7(1) of the Acts and is entitled to equal pay.

4.6 The complainant submits that she was treated differently to the Irish members of staff as set out at paragraphs 2.1 – 2.4 above. The complainant’s evidence was corroborated by in oral evidence given Ms. B and also in a written statement from Ms. D who also worked alongside the complainant. It is clear from the evidence that during the course of her employment the complainant was reprimanded and singled out for different treatment than the other staff members who were all Irish. I am satisfied therefore that the complainant has established that she was treated less favourably in relation to her conditions of employment than the Irish staff were treated in similar circumstances. Accordingly I find that the complainant has established a prima facie case of discriminatory treatment on the race ground in relation to this aspect of her case. The respondent did not attend the hearing and has therefore failed to rebut the prima facie case.

4.7 Equal Pay

Section 29 (1) of the Acts states: “It shall be a term of the contract under which C is employed that, subject to this Act, C shall at any time be entitled to the same rate of remuneration for the work which C is employed to do as D who, at that or any other relevant time, is employed to do like work by the same or an associated employer”.

“(5) Subject to subsection (4), nothing in this Part shall prevent

an employer from paying, on grounds other than the discriminatory

grounds, different rates of remuneration to different employees."

4.8 The existence of “like work” between a complainant and a named comparator is required to establish any entitlement to equal pay under the Acts. For the purpose of establishing whether there was like work, the complainant gave evidence of the work she did as a waitress as did Ms. B, who is one of the named comparators and also I was provided with a written statement from Ms. D in relation to the work she carried out as a waitress. The respondent did not respond or take part in the hearing. I can only make a decision based on the evidence of the complainant and the information provided by the named comparators.

4.9 Like work is defined in Section 7 of the Act:

...in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if-

(a) both perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work

(b) the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or

(c) the work performed by one is equal in value to the work performed by the other having regards to such matters as skill, physical or mental requirements responsibility and working conditions

4.10 The complainant produced in evidence pay slips and payslips for 2 of the named comparators Ms. B and Ms. D. The complainant hourly pay was €8.80 per hour and Ms. B was paid €10.44 per hour and Ms. D was paid €9.78 per hour. I am satisfied that the complainant was an experienced waitress and had the same experience as Ms. B. On the uncontested evidence of the complainant, I am satisfied the complainant has established “like work” within the meaning of Section 7 of the Act. I am satisfied that the complainant has established a prima facie case of discriminatory treatment on the race ground in relation to pay. The respondent must demonstrate that the difference in pay is on grounds other than the discriminatory grounds as per Section 29 (5) of the Act. As I have found like work between the complainant and the named Irish comparator, the respondent bears the burden of proof that the difference in pay is not connected to the nationality of the complainant and the respondent has not responded to the complaint. Having evaluated the evidence presented to me by the complainant, I find there are no grounds other than race for the pay disparity.

5. Decision

5.1 I have concluded my investigation of the complaint and I hereby make the following decision in accordance with Section 79(6) of the Act. I find that:

(i) On the basis of the foregoing, I find that the respondent discriminated against the complainant on the race ground contrary to section 6(1) and 6(2)(h) in relation to her conditions of employment and in terms of section 8 of the Acts;

(ii) The complainant was engaged in “like work” with the named comparator in terms of Section 7(1)(a), (b) and (c) of the Acts and therefore she is entitled to the same rate of remuneration as the comparator in accordance with Section 29 of the Acts.

Section 82-(i)(c) of the Act provides that I can make an order for the effects of the discrimination. The maximum award I can make under Section 82(4) is two years pay which in this case is in the region of €34,600 depending on the hours worked per week. The EU Directives require sanctions for a breach of the principle of equal treatment to be effective, dissuasive and proportionate. In calculating the redress and taking into account all the circumstance of the case, I consider that an award in the amount of €8,500 is appropriate for the discriminatory treatment.

This figure represents compensation for the infringement of her rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and therefore it is not taxable.

(iii) Under Section 82, I hereby make the following order:

that the complainant is entitled to equal remuneration with the named comparator Ms B from the 4th of April 2009 until her employment terminated on the 1st of August 2010. As this redress is in relation to remuneration, it constitutes income for the purposes of the Income Tax Acts.

____________________

Marian Duffy

Equality Officer

26th November 2013