DEC-E2015-127

Employment Equality Acts

Decision No. DEC–E2015-127

PARTIES

Changiz Durrani

(Represented by David Cassidy, LLB)

-v-

Brinks Security Services Ireland Ltd

(Represented by IBEC)

File Reference EE/2013/346

Date of issue: November 2015

1. Dispute

1.1 This dispute is in relation to a claim by the complainant that he was discriminated against by his employer in failing to provide him with equal pay and other conditions of employment on the grounds of race contrary to Sections 6 and 8 of the Employment Equality Acts and that he performs like work to a named comparator as per Section 7 of the Acts.

1.2 The complainant referred his claims under the Employment Equality Acts to the Equality Tribunal on 17 July 2013. On 1 October 2015, in accordance with his powers under Section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission referred the case to me, Joe Donnelly, an Adjudication Officer / Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director (General) under Part V11 of the Act, on which day my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on 6 October 2015 and final information was received on 21 October 2915.

1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with Section 83(3) of the Workplace Relations Act.

2. Summary of the Complainant’s Case

2.1 The complainant, who is from Pakistan, was interviewed for a position as Security Officer with the respondent on 26 July 2011. At the time of the interview he was employed on a part time contract in the retail trade working an average of 28 hours per week. As the complainant was married with a family he was seeking better working conditions.

2.2 The complainant’s understanding arising from the interview was that he would be working full time under a permanent contract of employment. He was given a form which contained his personal details and was told that a copy of his Terms and Conditions would be posted to him within two weeks. When he received these six weeks later he was shocked to see that it was in effect a zero hours contract. In the meantime and on the strength of what he believed he had been offered he had resigned his position in the retail trade. For about the first three months of his contract he did in fact work 40 hours per week. His rate of pay was €9.00 per hour.

2.3 The complainant then began to be rostered for between 20 and 30 hours per week. He spoke to management about it to no avail. His work locations began to vary considerably. On one particular site he discovered that there was another employee (named), doing the same job as he was and who had been hired some months later, who was in receipt of a higher rate of pay. This worker also got more rostered hours than the complainant and was Irish.

2.4 The complainant attempted to raise this issue with management. His hours became less predictable and at times amounted to 6 – 8 hours per week. In early 2012 his rate of pay, along with that of other similar staff increased to €10.00 per hour. Finally in August 2012 he had a meeting with management at which he was represented by his union. He was told that he was on a casual contract. He disputed this with management but failed to get a satisfactory response. He threatened to take legal action. His conditions of employment continued to deteriorate and he was removed from sites without explanation. He suffered stress and illness and was advised by his doctor to consider leaving his job as it was affecting his health. As a result of all this he resigned from his position on 19 June 2013. A case in relation to this is under appeal from the EAT to the District Court.

2.5 Prior to this the complainant brought a case regarding his contract under the Terms of Employment (Information) Act. The respondent was ordered to provide the complainant with a full time contract and compensation. The respondent appealed the decision to the EAT. By the time the case was heard by the EAT the complainant had left the employment. The EAT ordered an increased compensation payment.

2.6 The complainant believes that he was discriminated against both as regards pay and the type of contract that he was given. He believes that this was because of his race. He believes also that he was victimised by his employer for threatening legal action.

3. Summary of the Respondent’s Case

3.1 The complainant was employed as a Security Guard in the Security Services Division of the respondent company. This Division employs in excess of 650 employees.

3.2 The two main types of position for such employees are either static security guards or event security guards.

3.3 The JLC for the Security Industry ceased to have statutory effect from 7 July 2011 as a result of a High Court decision and the respondent ceased to implement its terms as and from that date.

3.4 The complainant commenced employment on 29 June 2011 and his contract was that of an events security guard. His rate of pay was €9.00 per hour and his hours could fluctuate on an ad-hoc basis.

3.5 Four other persons (details supplied) were hired on the same day as the complainant and on the same rate of pay. These persons were all of Irish nationality.

3.6 The named comparator commenced employment on 28 October 2011. His rate of pay was €10.01 per hour. He was guaranteed a minimum of 20 hours per week.

3.7 On the day that the comparator was hired seven other persons were also employed (details supplied). Three different rates of pay were applied depending on their contract as follows;

€9.00 per hour 4 persons 2 x Irish, 1 x Pakistani, 1 x Togolese

€10.01 “ 2 persons 1 x Irish, 1 x Italian

€10.75 “ 2 persons 2 x Irish

In addition, at the time that the €9.00 per hour rate applied there were 44 employees on that rate of which 33 were Irish and 11 non-Irish.

No representatives of the respondent present at the hearing were involved with this hiring process and therefore could not provide an explanation for the factors governing the application of the different rates of pay / contracts.

3.8 The respondent accepted that both the complainant and the comparator performed like work but, based on the above details, rejected the allegation that the differences in wage rates / contracts were based on race.

3.9 Following a review of wage rates and acting on advice received from their industry representative association the minimum wage rate for security guards was raised to €10.01 per hour from 5 January 2012. The complainant’s rate of pay therefore increased at that time.

3.10 The respondent’s submission was only received by the WRC on the evening prior to the hearing and therefore was only made available to the complainant at the actual hearing. This breach of procedures and the concerns it caused was raised with the representatives of the respondent who apologised and stated that there had been a reorganisation of the HR function within the company and a late change in their representation. The hearing was adjourned for thirty minutes to allow the complainant and his representative to study the submission. On resumption the complainant’s representative applied for the respondent’s submission to be ruled inadmissible but this was not granted. At the conclusion of the hearing the complainant was allowed two weeks to make any further response considered necessary.

4. Findings and Conclusions of the Adjudication Officer

4.1 The complaint form, signed by the complainant, was lodged with the Tribunal on 17 July 2013 some weeks after his employment terminated. It contained only one complaint in relation to pay discrimination on the grounds of race.

4.2 In his submission, received by the Tribunal on 24 June 2015, the complainant raised the issue of victimisation which would be a breach of Section 74 of the Acts. He reiterated this in a submission sent to the WRC after the hearing.

4.3 Section 77(5)(a) of the Acts state: “a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of a period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.” The victimisation claim can only be taken to have been made on 24 June 2015 and the complainant left the respondent’s employment in June 2013, which is the last date on which victimisation could be considered to have occurred. This was two years before the claim was made and is therefore out of time in accordance with Section 77(5)(a) of the Acts.

4.4 Having regard to the above I find that the only issue for decision by me is whether the complainant has a claim for equal pay on the grounds of race.

4.5 It is accepted that the named comparator was performing like work. The respondent put forward several possible reasons as to why persons were put on different contracts / rates of pay when they were hired but there was no direct evidence as to why specifically the complainant was on a lesser rate of pay and casual contract as against those conditions pertaining to the comparator.

4.6 Section 29(1) of the Acts state; “It shall be a term of the contract under which C is employed that, subject to this Act, C shall at any time be entitled to the same rate of remuneration for the work which C is employed to do as D who, at that time or any other relevant time, is employed to do like work by the same or associated employer.” The respondent is relying on Section 29(5) of the Acts for their defence which states “nothing in this Part shall prevent an employer from paying, on grounds other than discriminatory grounds, different rates of remuneration to different employees.”

4.7 The Labour Court has stated in the case of Cork City Council v Kieran McCarthy (Determination No. EDA0821) that “Section 85A of the Act, as amended now provides for the allocation of the probative burden as between the parties. It provides, in effect, that where facts are established by or on behalf of a Complainant from which discrimination can be inferred it shall be for the Respondent to prove the absence of discrimination.

The Court further stated that “the type and range of facts that may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended can properly be drawn from those facts. This entails a consideration of the range of conclusions which may be appropriately drawn to explain a particular set of facts which are proven in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can be drawn from those facts.”

4.8 I am now going to consider the evidence in the light of the above and to determine whether the complainant has established a prima facie case.

4.9 Evidence was given that on the day that the complainant was employed four other persons, all Irish, were also employed on the same rate of pay as he was.

4.10 On the day that the comparator was employed eight persons in total were hired on various pay rates, some higher than the comparator, some similar and some lower. These rates applied across a number of nationalities.

4.11 The complainant gave evidence of continually disputing the type of contract that he was hired on insisting that he would never would have agreed to a casual event contract. I note that the complainant referred issues regarding his contract to the Rights Commissioners Service and that the subsequent decision was appealed to the EAT who awarded him the sum of €987.40.

4.12 The Labour Court in Dyflin Publications Ltd. V Ivana Spasic considered a similar issue. In its findings the Court stated; “Here there is an acknowledged difference in pay as between the Complainant and her comparators. Such a difference may, in some circumstances, be sufficient to place the probative burden on the employer. Where, however, as in the present case, it is contended that the impugned difference in pay is grounded on factors other than the nationality or ethnic origin of either the Complainant or the comparators, there is an onus on the Respondent to make out that assertion. If the respondent succeeds in so doing any inference of discrimination which might otherwise arise is thus negated.”

4.13 It is unfortunate that there was no evidence regarding the criteria used by the company for determining the terms and conditions that were offered to job applicants. Having evaluated all the evidence, however, I am satisfied that the difference in pay as between the complainant and the comparator is not related to the nationality or ethnic origin of either the complainant or the comparator. On that basis I find that the respondent has made out a defence under Section 29(5) of the Acts. It follows that the complainant has failed to establish facts from which discrimination may be inferred.

5. Decision of the Adjudication Officer

I have concluded my investigation of this complaint and hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts, that the complainant has failed to establish a prima facie case of discrimination in relation to equal pay.

_______________________

JOE DONNELLY

ADJUDICATION OFFICER/EQUALITY OFFICER

November 2015