Complainant

Respondent

Anonymised Parties

A Security Worker

A Security Company

Representatives

Peter Gilfedder IBEC

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-00035046-001

04/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00035046-003

04/03/2020

The Complainant is employed as a Security Officer with the Respondent where he earns €13.50 per hour. He stated that he was discriminated against on the race grounds and that he was victimised. He also asserted that he was paid less than a fellow employee who was doing the same work because of his race.

While the Complainant provided extensive documentation in relation to his complaints, which is much too voluminous to summarise, there was no evidence of any discrimination in the cognisable period presented:

(i)               on the race grounds because of the Respondent’s failure to transfer him from the construction site where he worked to a data centre site where they also performed the security work

(ii)              in respect of his conditions of employment because of his race,

(iii)            in relation to promotion because of his race,

In addition, there was no relevant evidence presented to suggest that he was harassed because of his race in the cognisable period or that he was victimised.

In terms of the equal pay complaint, the Complainant stated that he earns €13.50 per hour. He gave evidence of an Irish Security Officer on the data centre site who he stated was doing the same work as him but was paid €14.50 per hour.

The Respondent disputed the allegation that the Complainant was treated in a manner any different to other members of staff and stated in the first instance that they do not transfer employees from one site to another on the basis of an employee’s race.

The Respondent also stated that the Complainant was not discriminated against in relation to his terms and conditions of employment.

The Respondent also disputed that the Complainant was harassed and highlighted that they have a comprehensive suite of policies on equality, anti-bullying, and employee conduct in the workplace.

The Respondent also rejected the allegations from the Complainant that he was victimised and stated that no unfair treatment was suffered by him that could be described as victimisation within the meaning of the Act.

In relation to the equal pay complaint, the Respondent stated that when the named comparator was moved to the Data Centre site, and the Complainant continued to work at the construction site, the subsequent difference in pay had nothing to do with race, rather, the subsequent differential was grounded on considerations which were unrelated to the nationality and ethnic origin of either the Complainant or the comparator. The Respondent also stated that they have at some points in the last few years paid slightly different rates to employees on both sites, and at times has achieved pay parity between the sites. However, where such differentials have existed, they have been due to the nature of the work, business requirements, negotiations, the nature of the client and other factors than that of race.

CA-00035046-001:

Discrimination for the purposes of this Act.

Section 6 (1) of the Employment Equality Acts 1998 to 2015 states:

For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated.

Section 6 (2) provides that: as between any two persons, the discriminatory grounds are inter alia: (h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”…

The Cognisable Period for the purposes of this Act

Section 77(5) states:

(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the 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.

(b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

 (c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“85A – (1) 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 effect of s.85A above is to place the burden of proof in the first instance on a Complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred. 

I note firstly that the Labour Court in Arturs Valpeters v Melbury Developments [2010] 21, ELR 64, widely regarded as the seminal decision on the onerous nature of the burden of proof, states that it:

“requires that the complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case and there is no closed category of facts which can be relied upon.  All that is required is that they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden of proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

Discrimination on the race grounds

In accordance with the Labour Court in the Valpeters decision, cited above, to succeed in a complaint of discrimination on race grounds, the Complainant must show that he was treated differently from his colleagues because of his race. Specifically, he must demonstrate that he was not transferred to the data centre site because of his race. As the Complainant however failed to produce any evidence of discrimination during the cognisable period, namely in the six months prior to the referral of the complaint to the WRC to support this contention, I find that he has not established a prima facie case of discrimination in respect of this aspect of his complaint.

Discrimination in relation to promotion

In accordance with the Labour Court in the Valpeters decision, cited above, to succeed in this aspect of his complaint, the Complainant must show that he was not promoted because of his race. As the Complainant however failed to produce any evidence to support this contention during the cognisable period, namely in the six months prior to the referral of the complaint to the WRC, I find that he has not established a prima facie case of discrimination in respect of this aspect of his complaint.

Discrimination in relation to conditions of employment

In accordance with the Labour Court in the Valpeters decision, cited above, to succeed in a complaint of discrimination on race grounds, the Complainant must show that his conditions of employment were different to others because of his race. As the Complainant however failed to produce any evidence of discrimination during the cognisable period, namely in the six months prior to the referral of the complaint to the WRC, I find that he has not established a prima facie case of discrimination in respect of this aspect of his complaint.

Harassment on the race ground

Section 14A of the Employment Equality Act states:

“(1) For the purposes of this Act, where —

(a) an employee (in this section referred to as ‘the victim’) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘the workplace’) or otherwise in the course of his or her employment by a person who is —

(i) employed at that place or by the same employer, …

and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it

…

(b) without prejudice to the generality of paragraph (a) —

(i) such harassment has occurred, and

(ii) either —

(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

(II) it could reasonably be anticipated that he or she would be so treated,

the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.

(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable —

(a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and

(b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’ s employment and, if and so far as any such treatment has occurred, to reverse its effects.

(3) A person’s rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person.

…

(7) (a) In this section —

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”

In accordance with the Labour Court in the Valpeters decision, cited above, to succeed in a complaint of harassment on race grounds, the Complainant must show that he was harassed because of his race. As the Complainant however failed to produce any evidence of harassment during the cognisable period, namely in the six months prior to the referral of the complaint to the WRC, I find that he has not established a prima facie case of discrimination in respect of this aspect of his complaint.

Victimisation

Section 74 (2) of the Employment Equality Acts 1998 to 2015 states:

“victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

The Labour Court in the case of Department of Defence v Barrett EDA 1017 stated in relation to victimisation:

“Protection against victimisation is a vital component in ensuring the effectiveness of anti-discrimination law. It enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution. Article 11 of Directive 2000/78/EC requires Member States to introduce into their legal systems such “measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment”

That obligation is given effect in Irish law by s.74(2) of the Acts. The definition of victimisation contained in that section contains essentially three ingredients. It requires that: -

1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),

2. The Complainant was subjected to adverse treatment by the Respondent, and,

3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.

As the Complainant in the instant case failed to present any evidence of a protected action he had taken, prior to the referral of the instant complaint, I find that he was not victimised pursuant to section 74(2) of the Act.

CA-00035046-003:

Discrimination for the purposes of this Act.

Section 6 (1) of the Employment Equality Acts 1998 to 2015 states:

For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated.

Section 6 (2) provides that: as between any two persons, the discriminatory grounds are inter alia: (h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”…

Like work

7.—(1) 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—

(a) both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work,

(b) the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or

(c) the work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

(2) In relation to the work which an agency worker is employed to do, no person except another agency worker may be regarded undersubsection (1)as employed to do like work (and, accordingly, in relation to the work which a non-agency worker is employed to do, an agency worker may not be regarded as employed to do like work).

Entitlement to equal remuneration.

19.—(1) It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer.

(2) In this section ‘relevant time’, in relation to a particular time, is any time (including a time before the commencement of this section) during the 3 years which precede, or the 3 years which follow, the particular time.

(3) For the purposes of this Part, where B’s employer is an associated employer of A’s employer, A and B shall not be regarded as employed to do like work unless they both have the same or reasonably comparable terms and conditions of employment.

(4) (a) Indirect discrimination occurs where an apparently neutral provision would put persons of a particular gender (being As or Bs) at a particular disadvantage in respect of remuneration compared with other employees of their employer.

(b) Where paragraph (a)applies, the persons referred to in that paragraph shall each be treated for the purposes of subsection (1)as complying or, as the case may be, not complying with the provision concerned, whichever results in the higher remuneration, unless the provision is objectively justified by a legitimate aim and the means of achieving the aim are appropriate and necessary.

(c) In any proceedings statistics are admissible for the purpose of determining whether this subsection applies in relation to A or B.

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

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“85A – (1) 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 effect of s.85A above is to place the burden of proof in the first instance on a Complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred. 

I note firstly that the Labour Court in Arturs Valpeters v Melbury Developments [2010] 21, ELR 64, widely regarded as the seminal decision on the onerous nature of the burden of proof, states that it:

“requires that the complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case and there is no closed category of facts which can be relied upon.  All that is required is that they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden of proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

Equal Pay

I note that the Complainant provided examples of purported comparators working for the Respondent on the data centre site who were earning more than he was for what he alleged was the same work on the construction site. The Respondent accepted that the employees working at the data centre site were earning more than him but asserted that they were not valid comparators because the work they were doing was very different to the duties being fulfilled on the site where the Complainant worked and also highlighted that it was not the same client which meant that they received different rates.

In terms of the difference in work between the two sites, it was asserted that security was a lot tighter on the data centre site and is akin to what would be seen at an airport. In addition, it was highlighted that while the security focus on the construction site is on access control, there is a much higher risk emphasis on the data centre site which means that the training requirement for the security staff is much more stringent and accountability is considerably greater. It was also stated that the alarm response at the data centre site is much more important, and that the skill set required for a worker is very different to what is expected of the Complainant on the construction site. In terms of the different rates, the Respondent stated that their various clients pay different rates to their security contractors and while in 2019 the Respondent sought an increase in rates for the workers on the construction site at the same time they sought one for workers on the data centre, the client at the data centre approved the increases prior to the end of 2019 while the client at the construction site did not do so prior to the complaint being referred to the WRC on 7 February 2020.   

Considering the foregoing, I find that the fact the Complainant is on a different rate of pay to another employee who is working on another site is not sufficient in itself for the Complainant to succeed and I find therefore that he did not establish a prima facie complaint under the equal pay provision of the Acts

CA-00035046-001:

As set out above, I find that the Complainant has not established a prima facie case that he was discriminated against on race grounds, that he was discriminated against in respect of his conditions of employment because of his race, that he was discriminated against in relation to promotion because of his race and that he was discriminated against by way of harassment. Given his failure to establish a prima facie case in respect of any of these aspects of his complaint, I find that the Respondent did not discriminate against him. I also find that he was not victimised.

CA-00035046-003:

As set out above, I find that the Complainant has not established a prima facie case under the equal pay provision of the Acts and therefore I find the Respondent did not discriminate against him on race grounds in respect of this complaint.