DEC-E2016-034

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2016-034

PARTIES

Vladimir Balaz

AND

AES Ireland Limited

(Represented by IBEC)

File reference: EE/2012/402

Date of issue: 23 February 2016

HEADNOTES: Employment Equality Acts – Race – Equal Pay

1. DISPUTE

1.1 This dispute concerns a claim by Vladimir Balaz that he was discriminated against by AES Ireland Limited on the grounds of race contrary to section 6 (2) (h) of the Employment Equality Acts in that he performs “like work”, in terms of section 7 of the Employment Equality Acts with named comparators and is entitled to equal remuneration in accordance with section 29 of the Acts.

1.2 The complainant referred his claim to the Director of the Equality Tribunal on 26 July 2012 under the Employment Equality Acts. Submissions were received from both sides. On 15 January 2015, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. I proceeded to a hearing on 4 March 2015.

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

2. COMPLAINANT’S SUBMISSION

2.1 The complainant started work on 10 January 2006 for a company that was taken over by the respondent on 29 March 2010.

2.2 The complainant submits that he was paid €379.20 per week. All other employees also receive a subsistence allowance of €56 or €77 per week. Furthermore, two drivers who transferred from the same company as the complainant and at the same time continued to receive subsistence payment they received prior to the transfer.

2.3 The complainant submits that he performs the same work as his colleagues who receive subsistence allowances on top of their pay, they work under the same conditions and each is interchangeable. He named 18 comparators.

3. RESPONDENT’S SUBMISSION

2.1 The respondent submits that the complainant started work in 1 September 2007 for the other company which they acquired in March 2010. Four employees transferred from the complainant’s original employer. The respondent also acquired another company on the same day. This was a total of 6 employees. 4 were Irish and 2 Slovakians (including the complainant).

2.2 On 26 March 2010 the respondent wrote to the complainant and the others who transferred and confirmed that all their previous terms and conditions applied. The complainant signed an acceptance.

2.3 The respondent submits that other employees, who were not previously employed in the first company in which the complainant worked, had different terms and conditions, which they also transferred.

2.4 The complainant was a General Operative with the respondent and was paid either €420 per week when he worked 5 days or €500 per week when he worked 6 days. He carried out like work with the other General Operatives. In total there were 106 General Operatives employed by the respondent. They are broken down in the following table according to nationality and whether they received a subsistence allowance.
 
 

The respondent submits that whether the subsistence allowance was paid or not has no connection to nationality. It relates to the pay structure they inherited when the respondent acquired a company under a Transfer of Undertakings. In this respect they rely on the Equality Tribunal decision DEC-E2004-017 Tracy v Uniphar plc.

4. FINDINGS & CONCLUSIONS

4.1 The issue for decision by me is whether the complainant has a claim for equal pay on the grounds of race. 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.

4.2 The complainant’s case is that he did not receive a subsistence payment that many of his colleagues, who did the same work as him, did receive. The respondent accepts that he performs "like work" with the named comparator in terms of section 7(1) of the Acts. Section 29 (1) of the Acts states: “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 or any other relevant time, is employed to do like work by the same or an associated employer”. It is not contested that the complainant performed like work with the other general operatives.

4.3 The respondent accepts that the complainant did not receive the subsistent payment that his comparators did. The respondent relies on section 29 (5) of the Acts, which states that “nothing in this Part shall prevent an employer from paying, on grounds other than discriminatory grounds, different rates of remuneration to different employees” and they contend that here are clear, transparent and objective grounds unrelated to race for the difference in remuneration. The grounds are that when they acquired other companies the employees who transferred to their employment kept the same terms and conditions as they had with their previous employer. Therefore the lesser pay received by the complainant was because he did not receive the subsistence payments that other General Operatives did. It is clear that whether subsistence payments were paid by the respondent only relates to the company from which they transferred. I therefore conclude that any difference in pay between the complainant and his comparators was for reasons other than race and find the complainant has failed to prove his claim of equal pay in relation to the named comparators.

5. DECISION OF THE EQUALITY 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 does perform ‘like work’ with the named comparator in terms of Section 7 (1) (b) of the Acts but there are objective grounds other than race for the difference in pay in accordance with section 29(5) of the Act and that the complainant has not been discriminated against by the respondent.

____________________

Hugh Lonsdale

Adjudication Officer/Equality Officer

23 February 2016