DEC-E2014-082

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

Decision DEC – E2014-082

Ainar Lucens

(represented by Grogan and Associates)

versus

Nurendale Ltd trading as Panda Waste Services

File reference: EE/2011/805

Date of issue: 1st December 2014

Keywords: Employment Equality Acts, Equal Pay, Race, Like work, Grounds other than race,

1. Dispute

1.1 This dispute concerns a claim by Ainars Lucens, who is Polish, against his current employer Nurendale Ltd that he was entitled to the same rate of remuneration as paid to five named comparators in accordance with the provisions of Section 29(1) of the Employment Equality Acts 1998-2011[hereinafter referred to as ‘the Acts’].

1.2 Through his legal representative, the complainant referred his complaint under the Acts to the Director of the Equality Tribunal on 24th April 2011. In accordance with his powers under Section 75 of the Act, the Director delegated the case on 31st January 2012 to me, Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Act. This is the date I commenced my investigation. A Hearing was held on 8th May 2013 as required by Section 79(1) of the Acts. In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties.

2. Summary of the complainant’s case

2.1 The complainant commenced employment with the respondents as an articulated lorry driver on 28th August 2004. The complainant’s work consisted of waste collection between a number of landfill sites within a 40 mile radius. He is and was always paid per load plus subsistence. The complainant submits that he is paid less than five Irish comparators. When he asked to be paid per hour as opposed to per load, the respondent said the only vacancy was in Donegal three hundred miles from where he lived.

3. Summary of the respondent’s case

3.1 The respondent was established in 1986 and carries on a waste collection service. It employs people of any nationalities and denies discrimination. Regarding Comparator A he is a Jet Vac driver which requires the use of specialised pumps and vacuums. He has been trained in the use of gas detection equipment and confined space training. Because of his expertise he is on 24-hour call for the respondent. They pay for his phone bill accordingly He deputises as Manager when Comparator B is off. He was put in charge of the clean up after musicals festivals at Slane, Oxygen and the V festival in the UK. For these reasons, the respondent submits that he is not a valid comparator.

3.2 Comparator B is Mr Lucens’s manager and therefore cannot be the complainant’s comparator. He has been employed by the respondent since 1997. His role involves the scheduling of rosters from the driver; liaising with the garage manager to ensure vehicles are in good condition and dealing with customers.

3.3 Comparator C is not a valid comparator as he is involved in the collection of plants and machinery around the country. He does not have a set driving route unlike the complainant and does not carry out load duties unlike the complainant. They argue that his work cannot be of equal value to the complainant as he needs to transport very expensive equipment rather than waste.

3.4 Comparator D also had conducted specialised training in pumps and vacuums and his role is different to the complainant in that he has to remove toxic waste. He is also involved in (but not at a managerial level) in the clean-ups after musical festivals.

3.5 Comparator E is the sales representative for the company i.e. he sources business for the respondent. He was initially employed as a driver but that is not his current role.

3.6 The respondent submits that complainant ignored valid comparators who do like work with the complainant. Mr F is Irish and he does the same work and is paid exactly the same as the complainant. Mr G is also Irish and is paid the same amount per load as the complainant. Mr H is Lituanian and he is also paid the same rate per load as the complainant.

3.7 The respondent also submits that it irrational for the complainant to seek to be paid per hour as Mr Lucens earned €1,941.14 per annum more than if he was paid per hour!

4. Conclusions of the Equality Officer

4.1 Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is race. The issue for me to decide is whether Was complainant is entitled to equal pay with five comparators?

4.2 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts. The Labour Court has stated in Melbury Developments Limited and Valpeters:

Section 85A of the Act provided for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. While those facts will vary from case to and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.[1]

Equal pay

4.3 Section 29 (1) of the Act provides that where A and B represent two people of the different nationalities it shall be a term of the contract under which A is employed that A shall at any time be entitled to the same rate of remuneration for the work A is employed to as B who, at that or any other relevant time, is employed to do like work by the same or associated employer. The existence of like work between a complainant and comparator is a necessary condition to any entitlement to equal pay under the Act. Therefore I will first examine whether like work exists.

4.4 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

In order to see whether or not the work of the complainant and the named comparators in their roles is equal in value as per Section 7(1) (c), I will examine same under the headings of skill, physical or mental requirements, responsibility and working conditions. As the complainant has also claimed like work within the meaning of Section 7 (1) (a) and (b), I will also consider whether each of roles constitutes like work as per those subsections.

4.6 The work of some comparators bears no resemblance, in terms of value, to the work of the complainant. The closest comparator to the complainant is Comparator C but he has more responsibility as he is charged with transporting very expensive equipment. For these reasons the complainant is not entitled to claim like work with any of the comparators under Section 7 1(c).

4.7 Neither do I find that this constitutes like work within the meaning of Section 7 (1) (a) and (b) as the work was not interchangeable. NUIC v Ahern is also relevant here. In that case, the Supreme Court found that complainants (security guards/porters) are entitled to pick their own comparators (part-time switchboard operators) but ‘for this purpose the Labour Court ought to have looked at the position of the comparators, not only in isolation, but also in the context of the other persons in the same grade who had not been chosen as comparators, namely the remaining switchboard operators.’[2] The complainant ignored Mr F, Mr G and Mr H.

Grounds other than race

4.8 As like work has not been established, it is not essential for me to examine grounds other than race. However, in the event of an appeal I will briefly focus on this. I am satisfied that market forces are valid grounds other than race. The waste industry is highly competitive and the respondent paid for Comparators A and D to undergo specialised training. As stated above Comparator B, C and E had very different roles and were paid accordingly. In the instant case, I find the respondent took account of the business needs of the undertaking (staff retention) and the pay differentials were proportionate. Having evaluated the evidence presented to me, I find there are also grounds other than race for the pay disparity between the complainant and five comparators.

Decision

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

(i) The complainant is not entitled to equal remuneration with any of the comparators

_______________
Orlaith Mannion

Equality Officer

'Footnotes'

[1] Labour Court Determination No. EDA0917
[2] [2005] 2 U,/r 577