THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
DEC – E2014-095
Laimonas Maciukas
(represented by Donal Keigher and Co. Solicitors)
versus
G4S Secure Solutions Ltd
File reference: EE/2012/625
Date of issue: 30th December 2014
Keywords: Employment Equality Acts, Race, Access to employment, Inadequate explanation by respondent
1. Dispute
1.1 This dispute concerns a complaint by Laimonas Maciukas, who is Lithuanian, against G45 Security Solutions that he was discriminated against regarding access to employment on the grounds of race contrary to 8 (1)(a) 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 12th December 2012. In accordance with his powers under Section 75 of the Act, the Director delegated the case on 9th April 2014 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 27th May 2014 as required by Section 79(1) of the Acts. The last piece of information was received on 1st October 2014.
2. Summary of the complainant’s case
2.1 The complainant submits that he was employed as a security guard at Athlone direct provision centre by Bridgestock Ltd for seven years. In May 2012 G4S Secure Solutions was taking over the security contracts and he and the other employees were invited to apply to the new company for their old jobs. He applied. On 13th June 2012 he was advised that his application was not successful. He submits that all other employees that applied with the exception of his brother Mamertas were reemployed. He submits that this was a transfer of undertakings and he should not have had to apply for his job. Irrespective of this point, he submits it is discriminatory on the ground of race that he was not reemployed. He submits that he that he a security licence, keeps himself very fit (he is a Judo Champion) and is very disappointed to have lost his job in this way. He said some of the Irish people kept on had disciplinary issues and still they were retained. In contrast, Mr Maciukas states that he and his brother had outstanding work records.
2.2 Regarding whether a transfer of undertakings took place, the complainant cites Redmond Stichting v Bartol where the Court of Justice of the European Union found:
1. Article 1(1) of Council Directive 77/187/EEC of 14 February 1977 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses is to be interpreted as meaning that the expression "legal transfer" covers a situation in which a public authority decides to terminate the subsidy paid to one legal person, as a result of which the activities of that legal person are fully and definitively terminated, and to transfer it to another legal person with a similar aim.
2. The expression "transfer of an undertaking, business or part of a business" contained in the same article refers to the case in which the entity in question has retained its identity. In order to ascertain whether or not there has been such a transfer in a case such as that which is the subject of the main proceedings, it is necessary to determine, having regard to all the factual circumstances characterising the operation in question, whether the functions performed are in fact carried out or resumed by the new legal person with the same or similar activities, it being understood that activities of a special nature which constitute independent functions may, where appropriate, be equated with a business or part of a business within the meaning of the directive. [1]
3. Summary of the respondent’s case
3.1 The respondent is a licensed security provider of static guarding services to customers nationwide. They employ 2000 security guards. At the time of the ward of the contract for Athlone accommodation centre G4S said that they were advised that a transfer of undertakings did not apply.
3.2 The respondent submits that the reason that neither of the Maciukas brothers were reemployed was because their client (Athlone accommodation centre) specifically requested that the Maciukas brothers not be retained. They submit that those reemployed were both Irish and non-Irish nationals. The respondent submits that it has an equality policy and is well aware of its obligations regarding the Employment Equality Acts.
3.3 The respondent cites Süzen v Zehnacker Gebäudereingung GmbH[2] as a counter-argument to the complainant’s one on whether a transfer of undertakings took place. Ms Süzen worked for Zehnacker, a cleaning company in a private school. Zehnacker lost the cleaning contract. Lefarth won the bid to take it over. Zehnacker let her go, along with 12 others. The CJEU considered that the:
“… Directive does not apply to a situation in which a person who had entrusted the cleaning of his premises to a first undertaking terminates his contract with the latter and, for the performance of similar work, enters into a new contract with a second undertaking, if there is no concomitant transfer from one undertaking to the other of significant tangible or intangible assets or taking over by the new employer of a major part of the workforce, in terms of their numbers and skills, assigned by his predecessor to the performance of the contract.”
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 to decide is whether the complainant was discriminated regarding access to employment.
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.[3]
4.3 I agree with the complainant that a transfer of undertakings did take place as a major part of the workforce in terms of numbers and skills did transfer (albeit having applied for their existing roles) as per Suzen and the activities carried out (security) were similar to work carried out before. I found the respondent to be very vague about the reasons Athlone Accommodation Centre did not want the Maciukas brothers retained. First of all, both had been employees for seven and then years respectively before the transfer took place – I find it surprising that their employment was not terminated during that period if there were performance issues. There was no evidence to back up the assertion that the complainant nor his brother were not retained on their client’s request. The respondent did not bring a witness from Athlone Accommodation Centre to corroborate what was said. Neither was a line manager who dealt directly with the client brought to give evidence. Nor was there any documentary evidence. Therefore, in the absence of adequate evidence I find this reason too convenient for the respondent. I prefer the evidence of the complainant. Those retained were six Irish nationals and one Romanian. Therefore, the complainant (Lithuanian) has established a prima facie case of discrimination on the ground on nationality and the respondent has not rebutted it.
4.4 As this is a complaint regarding access to employment, the maximum award as per Section 82(4) is €13,000. Therefore I think half of the maximum is appropriate - €6,500.
Decision
5.1 I have concluded my investigation of the complaint of Laimonas Maciukas and hereby make the following decision in accordance with Section 79(6) of the Act. I find that the respondent did discriminate against the complainant regarding access to employment on the ground of race.
5.2 In accordance with Section 82 of the Act, I order the respondent pay the complainant:
(a) €6,500 in compensation for the discrimination
The total award is redress for the infringement of Mr Maciukas's statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).
_______________
Orlaith Mannion
Equality Officer
'Footnotes'
[1] Case C-29/01 Redmond (Dr Sophie) Stichting v Bartol [1992] ECR I-3189
[2]( 1997) C-13/95
[3] Labour Court Determination No. EDA0917