EDA1428

The Equality Officer on 23 December 2013 decided against the Complainant in the following terms

Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that Ryanair did not discriminatorily dismiss Ms Agnieszka Spyra, by withdrawing agency work from her, within the meaning of S. 8(3) and S. 8(6) of the Employment Equality Acts 1998-2011, on the ground of her nationality contrary to S. 6(2) of the Acts

The Complainant appealed against that decision to this Court on 10 January 2014. The case came on for hearing before the Court on 13 May 2014.

Background

The Complainant, a Polish national, was employed by MK Human Resources Limited, an employment agency, and assigned to work with the Respondent Company. Her assignment with the Respondent Company commenced on 1 October 2007. The Respondent Company is an airline operator. It has two main seasons, a busy summer season and a less busy winter season. Normally the Respondent reduces the size of its operations during the winter season and lays-off staff in line with the reduced demand for its services. In 2013 the downturn in the demand for its services during the winter season was unusually high. The Respondent found it necessary to reduce its staffing levels beyond what was normal for that time of year. In doing so it decided to carry out an assessment of its staff by scoring them under a number of headings and laid off those that secured the lowest number of points under the assessment scheme.

The Complainant was assessed under the scheme in line with all other staff members. She scored the second lowest mark in the assessment. The lowest mark was scored by an Irish employee. Three staff members were selected for layoff. On reviewing the outcome of the assessment the Respondent decided that that the lowest scoring worker was a recent recruit that was showing signs of improvements in her performance. It decided that her score reflected the standard that would be expected from a new recruit and states that for that reason decided to exempt her from selection for lay off. The next three lowest scoring workers were selected for lay off. The Complainant was amongst those selected. Of the two others selected one was an Irish national and the other a Polish National.

The Complainant argues that an Irish national who received lower marks than her under the marking scheme was retained in employment while her employment with the respondent was terminated. She argues that this amounts to prima facie evidence of discriminatory treatment on the grounds of her nationality. She further argues that the selection process was unfair, arbitrary and lacked transparency and thereby may have facilitated discriminatory treatment. She argues that the evidence discloses that she was subjected to discriminatory dismissal by the Respondent on the grounds of her nationality contrary to Section 6(2)(h) of the Act.

The Respondent argues that it has no liability to the Complainant under the Act as it is not her employer and has no contractual relationship with her. It further argues that the decision to lay off staff was a commercial one necessitated by the unusually high downturn in business experienced in 2013. It argues that it developed a systematic scheme for assessing staff performance in order to determine a rank order for selection for lay off. It argues that it applied the scheme fairly and impartially to all staff and that the Complainant scored the second lowest mark of all of those assessed under the scheme. It acknowledges that the worker that scored the lowest score is an Irish national. It argues that she was a recent recruit and was making progress towards meeting the standards expected of her. It decided that it would be unfair to judge her against standards expected of an experienced worker and for that reason exempted her from selection for lay off. It states that it then proceeded to select the next three lowest scoring staff for lay off. These included two Polish nationals and one Irish national. The Complainant was amongst that group. It argues that, as she had worked with the Respondent Company for a number of years, it was reasonable to expect that her performance would enable her to score will under the criteria set out in the scheme. However she did not do so and she emerged as the lowest scoring fully trained worker under the scheme. It argues that the Complainant was accordingly selected for lay off.

The Respondent states that the top 5 scorers appraised under the system 4 are of Polish nationality. It further states that of the 10 check-in agency workers retained during this period 2 were Irish and 8 were non Irish.

It argues that performance at work and not nationality was the only factor taken into consideration in selecting staff for lay off.

It states that 90% of the total staff of the Company are non Irish and that 87%/88% of its supervisory staff are non-Irish. It states that 47% of its Dublin based staff are of non-Irish national origin and 57% of its Dublin based supervisory/managerial staff are of non-Irish national origin. It argues that reviewed in that context the outcome of the assessment process discloses no evidence of discriminatory bias on its part.

The Respondent finally argues that it is not the proper respondent in this case. It argues that Section 8(3) of the Act confers the protection provided by ss 8(4) - (8) of the Act upon agency workers. It argues that those sections provide protection to workers that are employed under a contract of employment by the respondent. In this case no such contract of employment exists between the Respondent and the Complainant. The Complainant’s contract of employment was with another entity, an employment agency and not with the Respondent.

The Respondent argues that there is no basis to imply a contract of employment as between the Complainant and the Respondent. It refers the Court to the decisions in Stephenson v Delphi Diesel Syatems Ltd [2003] ICR471 and Carmichael v National Power plc[1999]ICR1226. It argues that the decision inDacas v. Brook Street Bureau (UK) Ltd. [2004] EWCA and of the Labour Court in Diageo Global Supply v. Mary Rooney [2004] ELR 133 on which the Equality Officer and the Complainant relies can be distinguished from the instant case and do not provide authority for a finding that there is an implied contract of employment between the Complainant and the Respondent.

In this regard the Complainant argues that the Equality Officer has correctly stated the law in the body of his decision on the substantive matter before the Court.

Findings of the Court

The matter comes before the Court by way of an appeal by the Complainant against the substantive findings of the Equality Officer. The Respondent did not file an appeal against any aspect of the Equality Officer’s Decision.

The Court decided therefore to deal with the substantive complaint in the first instance.

In that regard the Court was supplied by the Respondent with a copy of a stenographer’s transcript of the hearing before the Equality Officer. The Complainant accepts that the transcript contained an accurate account of the proceedings before the Equality Officer and agreed to admit it into evidence.

It is common case that the airline industry in Ireland is subject to high and low seasons annually and that the demand for staff varies in each season. It is also common case that the seasonal downturn in the industry in 2013 was more acute than normal and that special measures were required to bring the supply and demand for staff into balance. The Respondent decided that it needed to lay off an additional number of staff that year over and above the normal retrenchment that would arise. Quite unusually that year it decided to develop and apply an assessment matrix by which to select staff for lay-off. This procedure may or may not have been fair. However that is not a matter for this Court. The issue for this Court is whether the system introduced and applied by the Respondent amounted to or resulted in discrimination on the grounds of national origin.

The Court has reviewed the system that was developed and applied in this case. The Court notes that some of the factors used in the assessment were transparent and subject to empirical verification. Some however were more subjective in that they consisted of assessments by supervisory staff of qualitative rather than quantitative performance and were not empirically verifiable.

Because of those factors the Court reviewed the outcome of the procedure to determine whether it affected people of different nationalities to different degrees. The Court finds that the evidence submitted by the Respondent discloses that the outcome of the procedure does not disclose differential outcomes for staff of different national origins.

The Court then considered the Complainant’s argument that the lowest ranked employee, an Irish national, was exempted from the selection procedure and whether this gave rise to a presumption of discriminatory treatment.

The Court finds merit in that argument. However the Court considered the argument advanced by the Respondent that the worker that scored lowest number of points under the assessment process was a recent recruit and was making constant progress at an acceptable pace and should not be judged by the same standards as long serving workers like the Complainant.

It is not for the Court to decide if this was a fair procedure. The only duty the Court has is to decide if it was discriminatory in design or outcome giving rise to discrimination on the grounds of national origin. In that context the Court finds that it was not.

The Court also considered the composition of the Respondent’s workforce and the outcome of the assessment exercise. In that regard it notes that the workforce is multi-racial and that the supervisory structure broadly reflects that make up. It further notes that the outcome of the assessment conducted ranked foreign national workers in four of the top five positions. The Court finds that those figures do not indicate an inherent adverse bias in the design or conduct of exercise against non-Irish workers. Neither does it disclose or suggest a bias against non-Irish workers in the outcome of the exercise.

On that basis the Court finds that the complaint is not well founded.

As the appeal on the substantive matter before the Court has not been upheld, the Court does not find it necessary or appropriate to address legal issues raised by the Respondent that were not appealed to this Court.

Determination

The complaint is not well-founded. The Decision of the Equality Officer is affirmed. The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
11th July 2014______________________
CORDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.