EDA162

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  •The Complainant had been directly discriminated against on the ground of race/nationality.
  

  •The Complainant had been indirectly discriminated against on the ground of race/nationality.

  •The Complainant had not been paid equal pay for doing like work. (However this claim was not grounded on any of the criteria set out in the Act. It was a complaint simpliciter.)

  •The Complainant was not paid the minimum wage set out in the National Minimum Wage Act 2000.

  •The contract of employment furnished to the Complainant on 16^thFebruary 2012 when he was transferred to the base at Budapest Airport, was issued to him in an insufficient and inadequate manner and was a disadvantageous contract in comparison to the one he had previously been on – contrary to the Act and the applicable law in the Republic of Ireland.

Secondly, he submitted that in any event the Comparator chosen by the Complainant was not a valid comparator for the purposes of the Act as he was not engaged in “like work” as defined by Section 7 of the Acts.

Proceedings before the Labour Court

The Complainant submitted his first submission on 16^thOctober 2015. As the Court has stated above it was unclear from this submission precisely what the Complainant’s ground for submitting the claim were. Therefore, prior to the appeal hearing, the Court requested him to submit a brief outline of his claim under the Acts. In response the Complainant submitted a further extensive submission on 29^thDecember 2015, and furthermore he requested to submit an additional lengthy submission at the appeal hearing.

Counsel forthe Respondent objected to the admission of these additional submissions on the grounds that it had compiled its response to the Complainant’s case based on the submission submitted on 16^thOctober 2015 and did not have sufficient opportunity to consider these additional submissions.

The Court outlined its position for the parties. While the Complainant raised a broad range of issues in his submissions to the Court as set out earlier in this Determination, including a claim that he was not paid the national minimum wage, the Court confirmed that the only matters properly before it were the claims of direct and indirect discrimination on the ground of race/nationality. The Court made it clear that it had no jurisdiction under the Act to hear the other claims made by the Complainant.

Furthermore, the Court made it clear to the parties that this appeal is limited to ade novoconsideration of the claims submitted under the Employment Equality Acts only. Accordingly, the Court proceeded to hear those aspects of the Complainant’s claim on ade novobasis.



Background

The Complainant is of Slovakian nationality. The Respondent is an agency contracted by Ryanair to employ Cabin Crew. He was employed by the Respondent as a member of Cabin Crew from 23^rdMarch 2011, based at Stanstead Airport in London until 16^thFebruary 2012 when he opted to transfer to Ryanair’s new base at Budapest Airport. The Complainant resigned from his employment on 7^thJuly 2013.

While based at Budapest airport, the Complainant was paid €11.34 per hour and €42.00 holiday pay. He brought a claim for equal pay pursuant to Section 29 of the Act. For the purpose of advancing his claim he nominated a comparator, a Cabin Crew member of Hungarian nationality, based at Weeze Airport, Dusseldorf, Germany and employed by the same employer,who was paid €16.20 per hour and €60.00 holiday pay.

Summary of the Complainant’s Case

The Complainant was not legally represented. At the appeal hearing on 8^thJanuary 2016 the Court invited the Complainant to explain in his own words, with the assistance of an interpreter, details of his complaint under the Acts.

The Complainant told the Court that his complaint related to the Respondent's failure to pay him equal pay for like work.He claimed that as both he and his comparator were engaged in like work within the definition of Section 7 of the Acts, then he was treated less favourably than his nominated comparator on the ground of race.

The Complainant submitted that as the Respondent had initially established equal pay rates for all European bases, paid in euro and equal pay rates for UK bases, paid in sterling, then applying lower pay rates for those based in Budapest was unfair. He contended that since he and his nominated Comparator were employed by the same employer doing like work on board the air-borne aircraft, both should have been treated equally. He submitted that his chosen Comparator was a valid comparator as he was engaged in like work as provided for in Section 7 of the Acts.

The Complainant accepted that all Cabin Crew members having the same nationality as him were not paid the lower rate of pay and he did not dispute that there were Slovakian Cabin Crew members based in Germany on the higher rate of pay applicable at that location. Furthermore, he accepted that all Cabin Crew members based at the Budapest base were paid the same rate of pay as he was, including those of Hungarian nationality.

Summary of the Respondent’s Position

Mr Ross Aylward, B.L. instructed by McDowell Purcell Solicitors, submitted that there are grounds other than race/nationality for the impugned differences in pay. He contended that the rates of pay applicable to each of the bases related to the cost of living within the locality and had nothing to do with race/nationality. Counsel submitted that the Respondent’s rates of pay at Budapest were calculated having regard to local comparators and stated that the Respondent’s Cabin Crew earnings were very competitive within the local market. In support of this proposition he referred to a report produced for an employer/employee meeting in Budapest on 26^thJune 2012 which detailed research carried out into local salary comparisons, and showed that the average net monthly take home pay of its Cabin Crew based in Budapest were above local comparable employments.

Mr Aylward informed the Court that the cohort of Cabin Crew members based at Budapest consisted of five different nationalities - Hungarian, Slovakian, Polish, Maltese and Spanish. All were paid at the same rate of pay. Similarly there were Cabin Crew members of Slovakian nationality based in Germany who are all paid at the same (higher) rate of pay. He submitted that the reason for the difference was based on grounds other than race/nationality.

In support of his contention, Counsel for the Respondent citedWakeman v Quick Corporation[1999] EWCA Civ J0218-1, where the Court of Appealdismissed an appeal against a finding of the Employment Appeals
Tribunal that included,inter alia,the following finding:

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  “were recruited and employed in another part ofthe world on terms and conditions appropriate to that other partofthe world.The fact that Quick Corporation is an international company does not mean that terms and conditions and employment structures must be the same in every country. There are different features oflife in different countries which may impact;"

• “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”.

• “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—

Court’s Findings and Conclusions

In essence the Complainant’s case under the Acts is that he was paid less that his nominated Comparator who was engaged in like work and that this difference was grounded upon the fact that he was of a different race/nationality to the Comparator.

While the Complainant submitted that he was indirectly discriminated against on the ground of race, he did not dispute that Cabin Crew members of the same nationality as him were paid according to the location of the airport they were based at. He did not dispute that there were Slovakians based in Germany who were paid the same rate as his nominated Comparator and that all nationals located at Budapest were paid the lower rate of pay. In such circumstances the Court cannot find there was a provision, practice or criterion that placed persons of the same race/nationality as the Complainant at a particular disadvantage. In such circumstances the Court does not find that he was indirectly discriminated against.

The Court will now consider the claim that he was directly discriminated against on the ground of his race/nationality. The Respondent relied on Section 29(5) of the Acts and contended that there were grounds other than race/nationality for the difference in treatment. It further contended that the Complainant and the nominated Comparator were not engaged in like work as there were different conditions applying, as the former was based in Budapest and the latter in Germany.

The Court accepts that the Complainant’s nominated Comparator is a valid comparator for the purposes of the Acts. It cannot accept the contention that there is not “like work” as defined by Section 7 of the Acts between the Complainant and his nominated Comparator. Both were engaged to carry out Cabin Crew duties.

However it is not enough for the Complainant to show there was like work within the meaning of the Act. He must show that the difference in pay arises as a result of the one of the grounds set out in Section 6 of the Acts. The Respondent relies on Section 29(5) and states that the difference in pay is entirely due to local living conditions and has nothing to do with the race/ nationality of the Complainant and his Comparator.

The Court cannot accept that the Complainant has made out a case of discrimination. It is clear that the difference in pay arises not from the race/nationality of the Complainant or on any evaluation of the Comparator’s working conditions but based on the location in which they work. The differences being solely related to the different cost of living conditions applying in the two different locations.

The Court is strengthened in its conclusion by the following uncontroverted facts:

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  (i)the Complainant did not dispute that all Cabin Crew regardless of their nationality were paid the same rate depending on their base and
  

  (ii)the Complainant prior to his transfer to Budapest had been based at Stanstead Airport in London and had been paid at a higher rate based on London cost of living.