EDA1718

This is an appeal by Tina Villi (the Appellant) against the decision of an Adjudication Officer under the Employment Equality Acts 1998 – 2015 (the Acts) in her complaint that she had been discriminated against on grounds of gender in relation to the allocation to her of working hours less than those provided for in her contract of employment. The Adjudication Officer decided that her employer, G4S Secure Solutions (Ire) Limited (the Respondent) had breached the Acts. The Adjudication Officer ordered the Respondent to place the Appellant on a roster as per her contract of employment, as if the discrimination had not taken place. The Adjudication Officer also ordered the Respondent to pay the Appellant the sum of €6,000 in compensation for the effect of discrimination.

The Appellant’s complaint was presented to the Equality Tribunal on 17^thJune 2016 and the decision under appeal was issued on 7th December 2016. The within appeal was received by the Court on 16^thJanuary 2017.

Background

The Appellant is employed as a security guard since 2002. She was, at all material times, paid at the rate of €10.75 per hour and she was located on a particular site for a period of nine years. Her contract of employment provides that she can be assigned to locations in County Dublin and surrounding areas. Her contract of employment provides for a working week of 40 hours.

Summary of the position of the Appellant.

The Appellant contended that, following a period of suspension in August 2015 she was provided with less working hours than all of her male counterparts on the site where she worked, notwithstanding that all of those male counterparts had less experience than her. She contended that she had been offered work on alternative sites but also submitted that the location of such other sites was in all cases unsuitable to her.

She contended that a named male comparator with less service than her had been assigned to work in her full-time position at her work location.

The Appellant contended that the decision of the Adjudication Officer failed to adequately consider the decision of this Court in Cementation Skanska v Carroll (WTC0338) wherein, according to the Appellant, the Court emphasised the importance of providing a real deterrent to employers who flagrantly breach their statutory obligations toward their employees. The Appellant further contended that the Adjudication Officer had failed to follow the decision of the Court of Justice of the European Union (the CJEU) inVon Colson and Kamann v. Land Nordrhein-Westfalen (Case C-14/83)[1984] E.C.R. 1891wherein, according to the Appellant, the CJEU held that the sanction for breaches of Community rights must be effective, proportionate and dissuasive and should not only compensate for economic loss sustained but must provide a real deterrent against future infractions. The Appellant contended that the Respondent is a very successful and profitable company and would not, as a consequence, be deterred by an award of €6,000.

The Appellant confirmed to the Court that no issue arises in this appeal as regards financial loss suffered by the Appellant as a result of the events contended to amount to discrimination. The Appellant submitted that any such loss had been resolved separately between the parties.

Summary of the position of the Respondent

The Respondent did not contest the conclusion of the Adjudication Officer that the Acts had been breached. The Respondent did however contend that the award of compensation made by the Adjudication Officer adequately addressed the matter and was fully appropriate taking account of relevant case law of this Court and the CJEU. The Respondent submitted that the financial loss suffered by the Appellant had been addressed by the Respondent and that no element of award was necessary or appropriate in this respect. The Respondent contended that, as a proportion of the award of €6,000 made by the Adjudication Officer, the financial loss suffered by the Appellant was approximately 40% and consequently the award of compensation decided upon by the Adjudication Officer far exceeded the financial loss to the Claimant which was, in any event, resolved separately by the Respondent.

Discussion and conclusions.

Section 85A(1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

• “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

• “The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

  It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

In the within appeal, the Appellant has set out a range of events which she contends amount to discrimination. The Respondent has not contested the assertions of the Appellant in this regard. In the circumstances the Court concludes that the Appellant has established a set of facts from which an inference of discrimination can be drawn and the Respondent has failed to discharge the burden of proving to the contrary. The Court therefore concludes that the Appellant has succeeded in establishing that she has been discriminated against on grounds of gender contrary to the Act at Section 8.

The Court must therefore consider the appropriate redress. The Appellant has relied on the decision of the CJEU inVon Colson and Kamann v. Land Nordrhein-Westfalen (Case C-14/83)[1984] E.C.R. 1891in asserting that an award of €6,000 is inadequate in all of the circumstances of this case.

This Court, in, C and F Tooling Limited and Jason Cunniffe (DWT15125) stated as follows:

• That case [Von Colson] needs to be understood in the context of the factual matrix in which it was decided. It concerned female social workers who had applied for posts at a male prison in West Germany. The authorities appointed two male candidates with lesser qualifications to those posts. The German Labour Court found that there had been discrimination and awarded the plaintiff's compensation pursuant to s.611a(2) of the German Civil Code. That section purported to implement Council Directive 76/207 on the implementation of equal treatment for men and women as regards access to employment. The Court found that that section only enabled it to award reimbursement of travelling expenses incurred by the Complainants in pursuing their applications for the posts.

  The CJEU pointed out that the Directive did not prescribe the range of sanctions that should be applied in cases where discrimination was found to have occurred. However the Court went on to say that if a Member State chooses to penalise infringements of the prohibition of discrimination by an award of compensation, such compensation has to be adequate in relation to the damage sustained and that it must have a deterrent effect. The Court pointed out that compensation has to be more than merely nominal damages which the German law provided in restricting compensation to the reimbursement of travelling expenses incurred by a candidate who was discriminated against in the filling of the post.

  The formulation used by the Court in answer to the third question posed by the referring Court is as follows: -

  • ‘Although Directive 76/207/EEC, for the purpose of imposing a sanction for the breach of the prohibition of discrimination, leaves the member-States free to choose between the different solutions suitable for achieving its objective, it nevertheless requires that if a member-State chooses to penalise breaches of that prohibition by the award of compensation, then in order to ensure that it is effective and that it has a deterrent effect, that compensation must in any event be adequate in relation to the damage sustained and must therefore amount to more than purely nominal compensation such as, for example, the reimbursement only of the expenses incurred in connection with the application. It is for the national court to interpret and apply the legislation adopted for the implementation of the directive in conformity with the requirements of Community law, in so far as it is given discretion to do so under national law.’

The Court is asked to take account of the financial standing of the Respondent in determining an award of compensation. This Court considered such a contention inWatters Garden world Ltd v Panuta(EDA098) and held as follows:

• There is no support in authority or in statute for the proposition that the Court should have regard to the financial circumstances of a Respondent in measuring the quantum of compensation to which a successful Complainant is entitled. Section 82(1)(c) of the Act merely provides that the Court may make “an order for compensation for the effects of acts of discrimination or victimisation….”. Article 15 of Directive 2000/43/EC (the Race Directive) and Article 17 of Directive 2000/78/EC (the Framework Directive) provides that compensation must be “effective, proportionate and dissuasive”. While the size of any award intended to have dissuasive effect may, for its effectiveness, have to take account of the financial capacity of an enterprise, the other elements of the award are related solely to the pecuniary loss suffered by the Complainant and the gravity of the transgression. The financial capacity of the Respondent is neither an aggravating nor a mitigating factor in measuring compensation under those headings.

The Court therefore, in all of the circumstances of the within appeal and taking account of the decision of the CJEU inVon Colson and Kamann v. Land Nordrhein-Westfalen(Case C-14/83) [1984],concludes that an award of compensation is appropriate in the within appeal.

Determination

The Court is satisfied that the Appellant herein was discriminated against on grounds of her gender in contravention of the Acts. The decision of the Equality Tribunal in that regard is affirmed. The award of compensation made by the Equality Tribunal is respect of discrimination is varied to one of €8,000. The decision of the Adjudication Officer to order placement on a roster as per her contract of employment is affirmed.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
21 June 2017______________________
MNChairman



NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.