ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00010284

	Complainant	Respondent
Anonymised Parties	A Technical Support Analyst	A Services and IT Support Company.

Representatives

Self-Represented

IBEC

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00013382-001	29/08/2017

Date of Adjudication Hearing: 12/07/2018

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The case concerns claims of Equality Discrimination against the Complainant on Grounds of Race, Victimisation, Conditions of Employment and Other Grounds. The Complainant works in an International IT call and support centre.

1: Summary of Complainant’s Case:

The Complainant, who is of Portuguese nationality, alleged discrimination on primarily Racial Grounds as his salary is less than that of Norwegian speakers in the same employment.

He maintained that the disparity in remuneration was due to his being of a different racial & ethnic background to the Norwegian speakers. His efforts to seek redress from the employer resulted in the Respondent victimising and harassing him.

The Complainant did not provide a written submission but relied on an oral presentation.

2: Summary of Respondent’s Case:

The Respondent operates a large international call centre with 12 Languages supported. The workforce comprises employees from 30 different nationalities.

Each service area is supported by staff fluent in the Language being supported. The Nationality or Ethnic origin of the staff member is not relevant as long as they satisfy the Language requirement. All areas have employees of different nationalities and ethnic origin.

The rates of pay for the different Languages are effectively determined by the market place for the different languages. Norwegian, the focus of the Complainant’s complaint, is paid a higher rate as Norwegian speakers are difficult to recruit. It is a minority language. Portuguese the language of the Complainant is one of the major world languages and is relatively easy to recruit for.

The Respondent relied on Section 29(5) of the Employment Equality Act ,1988 which allows for different rates of pay “on grounds other than the discriminatory grounds” as an objective justification for the different rates of pay between Portuguese and Norwegian. Reference was also mad to Article 4 of the Council Directive 2000/43/EC (Race Directive) in further support of their position.

Considerable legal precedent was also quoted especially Dyflin Publicatiuons Limited v Ivana Spasic (EDA0823) in support of the contention that differences in rates of pay can be acceptable on objective grounds unrelated to discriminatory factors.

The Respondent also pointed to the need for the Complainant to make a prima facie case of discrimination which they asserted had not been made.

The claims of Victimisation, Harassment and Discrimination in Conditions of Employment were denied as no evidence, other than mere assertions, in support had been produced.

3: Findings and Conclusions:

3:1 The Relevant Law.

In a case based on the Employment Equality Act, 1998 certain requirements must be met.

First of all, a claim has to establish a prima facie basis for Discrimination based on a realistic factual basis. The Labour Court has ruled on many occasions that “mere assertions” are not acceptable. The case of Southern Health Board v Mitchell, DEE011, [2001] ELR 201 being a leading authority.

Secondly, even if the hurdle in Point 1 is passed, it is open to a Respondent to rely on specific sections of the Act to provide an acceptable defence. In this case Section 29(5) is relevant.

Employment Equality Act, 1998

Entitlement to Equal Remuneration

29.—

(5) Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees.

3:2 Consideration of the Evidence presented.

3:2:1 Claim of Racial Discrimination.

Detailed evidence was presented by the Respondent of the Racial/Ethnic and Language backgrounds of the workforce.

It was clear that no strong link existed between fluency in a particular language and racial/ethnic backgrounds. The evidence was not challenged by the Complainant.

Based on the evidence I could not find the basis of a prima facie case here.

3:2:2 Claim of Victimisation.

No prima facie evidence was presented to sustain this claim. The Complainant made a number of allegations and assertions but none were supported by any evidence.

3:2:3 Claim of Discrimination in Conditions of Employment.

No evidence presented to raise even an inference of discrimination.

3:2:4 Claim of Discrimination on other Grounds – Equal Pay

It was accepted by the parties that different rates of pay existed for particular Language sets.

In Quarter 1 of 2017 a substantial review was carried out by the Respondent on Rates of Pay in this area and revised proposals were presented and implemented from the 1st July 2017.

A premium rate of pay was introduced for Nordic Languages as recruitment and retention in this area was proving difficult across the Board in Ireland.

The evidence presented by the Respondent demonstrated that Racial origin has no connection with an ability to speak a particular language. The higher rate of pay reflected the difficulties in recruiting speakers of a minority Nordic Language. Portuguese, the language of the Complainant, is a major world language with little difficulty in sourcing fluent candidates.

Accordingly, the Respondent, while absolutely refuting any suggestion of a prima facie case being made on any of the claimed grounds, relied on Section 29(5) of the Act as a further rebuttal defence.

3:3 Conclusion.

Having carefully considered the evidence both written and oral from all the parties I came to the conclusion that no prima facie case of Discrimination had been made on any of the claimed grounds.

There was no evidential link made between Language skills and racial /ethnic origin such as to even raise an inference of Discrimination.

Furthermore, a rebuttal defence under Section 29(5) of the Act would apply even if a prima facie case had been made.

Accordingly, the Claim is Dismissed in its entirety.

4: Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Act	Complaint/Dispute Reference No.	Summary decision. Please refer to Section 3 above for detailed reasoning.
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00013382-001	Claims of Discrimination on Grounds of 1: Race 2: Victimisation 3: Conditions of Employment 4: Other Grounds / Equal Pay are dismissed.

Dated: 5th October 2018

Workplace Relations Commission Adjudication Officer: Michael McEntee

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