DEC-E2014-001

EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS, 1998-2011

DECISION NO: DEC-E2014-001

PARTIES

Hlistova, Logojdova, Bobrovska, Zocak, Kristenova, Konstantinovs, Konstantinova, Karolczyk, Sabadach, Tokarska, Baibakova, Biseva, Lesciova, Jelinkova, Peska, Kolova, Pavlicko, Kristin, Niemirowski, Vytykac, Koselnik, Jefremovs, Vychodil, Wroblenski, Krzak, Urbanowicz, Ilcezyna, Barus, Skabe, Kowalczyk, Matustenska, Terenowicz, Egresi and Krylova

(Represented by Richard Grogan and Associates, Solicitors)

v

We Clean Ltd (in liquidation)

File Nos: EE/2010/051, 063, 064, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 225, 226, 227, 235, 236, 237, 238, 239, 240, 241, 242, 243, 244, 245, 287, 291, 367, 368 and 464.

2 January 2014

Headnotes: Employment Equality Acts, 1998 to 2011 sections 6, and 8 – ground of race – conditions of employment, equal pay – prima facie case.

DISPUTE

1.1 The dispute concerns claims by 34 Complainants against We Clean Ltd. These claims relate to allegations of discriminatory treatment in training, conditions of employment and otherwise and, in 3 cases, of harassment in accordance with the relevant provisions of the Employment Equality Acts.

2. BACKGROUND

2.1 Each of the Complainants is a foreign national and all were employed as cleaners by the respondent. All of the Complainants are alleging discriminatory treatment on the grounds of race and 3 also on the ground of gender. In particular, the Complainants claim they were not provided with any proper contract in a language likely to be understood or at all. Nor did they receive neither Health and Safety documentation nor training. The Complainants state that they were purportedly made redundant when other workers who rented accommodation from the employers were taken on in a new company which took over immediately the contracts of the respondent. The Complainants did not receive their legal entitlements to pay and there were illegal deductions. The Complainants say that a notional Irish comparator would not have been treated in this fashion. The details of all the Complainants are set out in the Appendix. The respondent company is in liquidation and the liquidator did not provide an answering submission.

2.2 Each of the Complainants, through their representative, referred claims to the Equality Tribunal on varying dates commencing on 28 January 2010 under the provisions of the Employment Equality Acts. The date of receipt of the most recent claim was 21 June 2010. Under the Equality Legislation there is no provision for class actions. There are 34 separate claims. I will deal with the complaints all together for administrative convenience. A hearing took place on 2 May 2012. The respondent was not in attendance.

3. Summary of Complainants’ case.

Thirty of the Complainants attended the hearing. At the hearing the complaints of gender discrimination and harassment were not pursued. No evidence in support of the claims of discrimination in the provision of contracts and Health and Safety documentation or training was presented. The case presented boiled down to two main elements:

• Those Complainants who were entitled to the JLC/REA rates of pay for contract cleaners did not receive their full entitlement. Some received only the (lower) national minimum wage. A notional Irish comparator would not be so deprived of his statutory minimum remuneration. An Irish employee would most likely have been aware of his/her entitlements under the REA. The Complainants’ representative asked me to draw from the fact that no Irish were employed the inference that it was the intention of the respondent to exploit non-Irish nationals who would not be aware of their rights under JLC/REA.
• Those who accepted the offer of rented accommodation in a house owned by a Director of the company were promised additional hours. This treatment would not have been given to an Irish national.

I examined each of the Complainants present at the hearing. The following facts emerge:

• All employees were dismissed on 9 February 2010 when the respondent company ceased to trade. No claim of discriminatory dismissal was made.
• Some, but not all of the complainants were taken on by a successor company at the same terms and conditions. No claim of discrimination against the successor company is before me. It is not true that only those who rented accommodation from a Director of the respondent company were re-employed by the successor company.
• The offer of rental accommodation in houses owned by a Director of the company was made to some but not all the Complainants. Some accepted and some rejected the offer. It was generally believed that those who rented accommodation would benefit by getting more hours of work. However some of those who accepted the offer of rental accommodation said that the additional hours promised were not maintained for more than a few weeks.
• Rates of pay for the complainants varied between the national minimum wage (€8.65 per hour) and the REA rate of €9.50 per hour. There is no correlation between nationality of employee and the rate of pay received.

4. Summary of respondent’s case

The respondent neither attended the Hearing nor was it represented at same.

5. Conclusions

5.1 The issue for decision by me is whether or not the respondent discriminated against the complainants on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts as regards their conditions of employment. 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 Section 6(1) of the Employment Equality Acts, 1998 – 2007 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… “

It follows therefore that the complainants must be the subject of less favourable treatment in comparison to another person on grounds of nationality in this case because they are not Irish.

5.3 Section 85A of the Employment Equality Acts 1998- 2007 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 the Labour Court and it requires the complainant to prove the primary facts upon which he 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 of him his case cannot succeed.

5.4 In Melbury Developments v Arturs Valpetters[1] 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". 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[2] when it affirmed the approach adopted by this Tribunal in Businkas v Eupat Ltd [3] 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. Section 6 of the Acts provides that discrimination can also arise in circumstances where one person would be treated less favourably than another person on one of the grounds - the concept of a hypothetical or notional comparator. In Toker Developments v Edgars Grods[4] the Labour Court confirmed it "is settled law that in cases of equal treatment a hypothetical comparator can be relied upon but only where there is some evidential basis upon which it could be concluded that such a comparator would have been treated more favourably in the circumstances of a particular case. ... It would clearly be impermissible for the Court to reach conclusions of fact based upon mere supposition or speculation.".

5.5 The complainant's representative submits that I should consider the issues raised in the instant cases based on how a hypothetical Irish employee would have been treated by the respondent in the circumstances. 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 (Information) Act, 1994 within two months of the date of commencement of employment. I am not satisfied that an Irish employee would have been treated differently in the circumstances. I have reached a similar conclusion as regards those aspects of the complaints connected to health and safety and training.

5.6 The complainants state that they were not paid the appropriate rate of pay, or other employment related entitlements, as set out by the JLC for the Contract Cleaning Industry and in essence assert that an Irish employee would not have been so treated as s/he would have been aware of their entitlements. I have carefully considered the arguments advanced by the complainants' solicitor on this matter and I am not satisfied that they provide the evidential basis to enable me conclude that an Irish employee would have been treated more favourably in the circumstances. Moreover, insofar as the complaints relate to elements of remuneration it could only be dealt with under section 29 of the Employment Equality Act which deals with equal pay and not under section 6 of the Acts which deals with discrimination in conditions of employment. It is not possible to ground a claim of equal pay by reference to a hypothetical comparator. In any event a claim for equal pay under section 29 has not properly been made.

5.7 The complainants state that a hypothetical Irish employee would not have been made the offer of rental accommodation in houses owned by a Director of the company. I found that the offer was made to some but not all the respondents, but not based on their nationality. Some accepted and some rejected the offer. It was generally believed that those who rented accommodation would benefit from getting more hours of work. I am not satisfied that being made an offer of rental accommodation with the inducement of additional hours (which offer could be accepted or rejected) did amount to less favourable treatment.

In light of my comments in this and the preceding paragraphs, I find that the complainants have failed to establish facts from which it could be inferred that a hypothetical Irish employee would have been treated differently than them in the circumstances and their complaints therefore fail.

6 DECISION

I have completed my investigation of these complaints and in accordance with section 79(6) of the Employment Equality Acts I issue the following decision. I find that the Complainants have failed to establish a prima facie case of discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts and their complaints cannot therefore succeed.

Niall McCutcheon

Director

2 January 2014

APPENDIX

CASES AGAINST WE CLEAN LIMITED ON GROUNDS OF RACE

NOTE:

DT means Discriminatory Treatment

H means Harassment

Footnotes:

[1] EDA 0917

[2] Arturas Businkas v Eupat Ltd (In Liquidation) EDA103

[3] DEC-E2009-039

[4] EDA105