Equality Tribunal
Employment Equality Acts 1998 to 2008
Equality Officer Decision
DEC-E2015-035
Parties
Aleksandrovs, Sidorov, Rikmanis, Timofejus and Sinicins
[Represented by Richard Grogan & Associates]
V
Roskell Limited
[Represented by Rosemary Mallon BL, instructed by Arthur Cox Solicitors]
File Nos: EE/2010/581, 582, 583, 810 and 848
Date of Issue: 23 June 2015
Headnotes: Employment Equality Acts 1998 – 2008 – sections 6, 7 and 29 – race – equal pay – like work
1. Dispute
This case concerns complaints by Mr Aleksandrs Aleksandrovs, Jevgenij Sidorov, Armands Rikmanis, Aleksejs Timofejus and Aleksandres Sinicins (the “Complainants”), of Latvian nationality, that they were discriminated against on the ground of race, within the meaning of sections 6 (2) (h) by Roskell Limited (the “Respondent”) by failing to provide equal remuneration to them as required by an equal remuneration term and by failing to provide equal treatment to them by comparison with a named Comparator of Irish nationality who performed like work, contrary to section 29 of the Employment Equality Acts 1998 to 2008 ("the Acts") .
2. Background
Mr Aleksandrovs (Complainant 1), Mr Sidorov (Complainant 2) and Mr Rikmanis (Complainant 3) lodged claims on 21 July 2010. Mr Timofejus (Complainant 4) and Mr Sinicins (Complainant 5) lodged claims on 28 October 2010 and 11 November 2010 respectively. The Complainants’ representative made a written submission on 28 February 2011 and the Respondent’s representative made an answering submission on 16 May 2011. The Director of the Equality Tribunal held a hearing on 14 December 2012 at which both parties attended. The Complainant’s representative supplied further information on 31 January 2013.
The Complainants argue that they were paid less than a named Irish comparator for doing like work because of their nationality. The Respondent denies this and states that the comparator had a supervisory role and liaised with customers which was different to the role of the complainants. Subsequently the work was reorganised and the Irish comparator lost his supervisory function. He was then paid the same as the complainants for doing the same work.
The complainants commenced work for the respondent on the following dates:
Complainant 1: 18 August 2000
Complainant 2 16 August 2004
Complainant 3 3 October 2004
Complainant 4 18 August 2004
Complainant 5 2 June 2006.
The Comparator commenced employment with the Respondent on 19 May 2000.
It is common case that the Complainants were employed as “pickers” The Respondent receives orders from retail supermarkets and supplies pre-packed vegetables and flowers. The pickers pick what is ordered from pallets at the Respondent’s facility in Swords. The orders are then transported to the retailer. Both parties agree that the Complainants were paid 10.17 euros per hour, with overtime paid at the same rate and a Sunday premium of 70 euro was paid to all staff, complainants and comparator alike.
The average weekly wages of the Complainants in the three month period prior to the complaint being made were:
Complainant 1 493.68 euro
Complainant 2 459.68
Complainant 3 425.03
Complainant 4 418.49
Complainant 5 490.09
The Comparator was paid an annual salary which equated to a weekly gross of 551.89.
3. Summary of Complainants’ case
The Complainants claim that they worked alongside the comparator and did the same work or work of equal value and ought to have been paid the same.
4. Summary of Respondent’s case
The Respondent admits that the Complainants were paid less than the comparator but argues that the comparator did not do “like work” with the Complainants. The respondent states that the Complainants’ sole responsibility was for picking orders. The Comparator, in addition to picking orders in the same way as the Complainants, had the following additional supervisory functions:
(a) The Comparator was responsible for counting the “bulk” of product. He carried this role exclusively in a separate part of the facility on a daily basis.
(b) The Comparator also had responsibility for ensuring there was sufficient product to meet the orders. If there was insufficient quantity of product to meet any order, the Comparator liaised directly with the retailer and advised of the shortfall. The Comparator also arranged for the shortfall to be made up in a subsequent order and/or substituted product, if appropriate.
(c) If there were problems with the delivery of the order, the comparator was responsible for liaising with the retailer in respect of such problems.
(d) The Comparator was solely responsible for all the plants and flowers and assembled these for distribution to retailers in Northern Ireland and the Republic of Ireland.
(e) The Comparator supervised and directed the “pickers” on the Northern Ireland line. Any issues that arose on that line were the ultimate responsibility of the Comparator.
Witnesses for the Respondent (the General Manager and the Manager) gave evidence at the hearing that the Comparator had particular responsibility for the Northern Ireland line. This was a clear physical and functional separation from the work of the complainants. The Comparator liaised with the retailers who were the customers. The comparator was paid an annual salary which equated to € 551.89 per week. Supervisors were salaried.
As a cost-cutting measure, the number of supervisors was reduced and the comparator ceased to have any supervisory responsibilities. Prior to the reorganisation, the comparator was paid more for the additional roles and responsibilities he was assigned, and not for reasons connected with his race. After reorganisation he was paid the same for doing the same job as the complainants.
5. Response by Complainant 1.
Complainant 1, in response to the claims of the Respondent submitted that he in fact had additional duties on a par with the Comparator. In particular he undertook the following tasks also carried out by the Comparator:
1. Labelling.
2. Preparing the bulk i.e. preparing items for picking.
3. Using a battery transporter to carry goods.
4. Changing goods due to wastage/quality control issues
5. Picking flowers
6. Cleaning up
7. Loading and unloading trucks
8. Checking for any mistakes
9. Dealing with the pack house about shortages
10. Picking nuts at Hallowe’en
11. Picking up order sheets
12. Picking items for both Northern Ireland and the Republic.
In addition the Complainant operated a fork-lift truck, work not undertaken by the comparator.
6. Conclusions
The issue for consideration by me is whether or not the Complainants performed “like work” in terms of section 7 (1) of the Acts to the Comparator. In reaching my decision I have taken into consideration all of the submissions and responses, oral and written, made to me by the parties as well as the evidence given to me by witnesses at the hearing.
Section 7 (1) of the Acts defines “like work” -
“Subject to subsection (2), for the purposes of this 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 is 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 regard to such matters as skill, physical or mental requirements, responsibility and working conditions.”
In the course of the hearing it became evident that Complainants 2 to 5 did not carry out duties in excess of “picker” and clearly did not carry out the same work, work of a similar nature or work of equal value to that of the Comparator.
I have examined the claim of Comparator 1 of doing work of equal value to that of the comparator, under the headings of skill, physical or mental requirements, and responsibility or working conditions.
It appears to me that Complainant 1 carried out work of equal value in terms of physical requirements and working environment. However, because the Comparator carried out essentially supervisory roles in terms of responsibility for the Northern Ireland line and liaising with customers, the work of the Comparator was more valuable in terms of skill, mental requirements and responsibility. Therefore Complainant 1 did not carry out work of equal value to that of the Comparator.
7. Decision
I have concluded my investigation of these complaints and hereby make the following decision in accordance with section 79 (6) of the Acts. I find that –
The Complainants did not perform “like work” in terms of section 7 (1) (a), (b) or (c) of the Acts with the named Comparator during the period in which the Comparator was paid more than the Complainants.
Niall McCutcheon
Director
23 June 2015