EDA2562

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00046079 (CA-00056547-003)

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 21 August2024. Labour Court hearings took place on 27 August 2025.

The following is the Determination of the Court:

DETERMINATION:

This is an appeal by Peter Ogurčák (“the Complainant”) of a decision of an Adjudication Officer under the Employment Equality Acts 1998 – 2015 (“The Acts”) in relation to a complaint against his former employer Mercato Limited (“the Respondent”).

The Adjudication Officer decided that the complaint was not well founded.

Peter Ogurčák appealed that decision to the Labour Court. A hearing of the appeal together with three linked appeals TED2518,TED2519 and DWT2537 was conducted by remote hearing on 27 August 2025. Peter Ogurčák and Alan Leahy, a director of the Respondent company, gave evidence under affirmation.

1. Background

The Complainant commenced employment with the Respondent as an IT engineer on 4 December 2014.  In July 2021, by agreement with the Respondent, the Complainant relocated to Slovakia to work from his home office.  The Complainant resigned his employment on 26 December 2022.

The Complainant contends that he was discriminated against on the ground of his Race (nationality) as he was paid less than a named comparator. The Respondent refutes that assertion.

2. Summary Position of the Complainant

The Complainant submits that he was discriminated against, as he received less pay than a named colleague of a different nationality who carried out the same work. The Complainant is a Slovakian national and his named comparator is an Irish national.

The Complainant accepts that he earned €5,000 more per year than his comparator but submits that he worked longer hours each week, as his colleague was facilitated with an earlier finish time. The Complainant contends that as he worked longer hours, he received proportionately less pay than his comparator. The Complainant contends that the only reason for the discrepancy in his pay was because of his race (nationality).

The Complainant further submits that his comparator was paid an annual bonus of €3,000, which he did not receive. The pay system lacked transparency and as the Respondent refused to answer the Complainant’s request for information about the comparator’s pay, the burden of proof rest with the Respondent to demonstrate that no discrimination occurred.

3. Summary Position of the Respondent

The Respondent rejects that the Complainant was subject to discrimination in terms of his pay, as the Complainant was paid a substantially higher salary than his named comparator.

The Respondent submits that the Complainant’s average monthly salary in 2021 was €2,900 gross, which increased to €2,950 per month in July 2021. His named comparator commenced employment in April 2021 on a monthly salary of €2,340 per month. The Complainant was paid €460 more per month than his named comparator in 2021.

In 2022, the Complainant’s increased to €2,950 per month. The salary of his named comparator increased to €2,521 per month. The Complainant was paid €429 more per month than his named comparator in 2022.

Mr Alan Leahy’s evidence was that the roles undertaken by the Complainant and his named comparator do not constitute “like work”. Mr Leahy accepts that they both engaged in similar work when working remotely, however, the Complainant ceased working on physical hardware in the Cork office or engaging in work on client sites after he relocated to Slovakia in July 2021. The Comparator’s work changed around that time, and he spends 50% of his time working on physical hardware or client sites.

Mr Leahy rejected the assertion that the Complainant worked longer hours than his named comparator.  His evidence was that both were contracted to work the same hours from 9am to 6pm, inclusive of breaks. He agreed with the comparator that he could leave work early to get a bus, on the basis that he made up the lost working time before 9am and after 6pm. Mr Leahy said that he was satisfied that the comparator fulfilled his contractual obligations in relation to his working hours.  Mr Leahy said that the Complainant received time-off-in-lieu (TOIL) for any work completed after 6pm.

Mr Leahy rejected the assertion that the Complainant’s comparator was paid an annual bonus of €3,000.  His evidence was that the Comparator was eligible to receive subsistence payments when he travelled to work on client sites. The Complainant was not eligible to receive subsistence payments after he relocated to Slovakia in July 2021, as he ceased providing IT support on client sites.

4. Relevant Law

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.

Valid Comparator

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.”

Burden of Proof

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.

5. Deliberations of the Court

The Complainant contends that he was discriminated against on the ground of his Race (nationality) as he was paid less than a named comparator.

To ground his claim, the Complainant must in the first instance establish that he engaged in “like work”, as defined by the Act, with a valid comparator and that he received less pay that than comparator from undertaking the same work.

The Court accepts that the Complainant has established a valid comparator, as the Complainant is a Slovakian national and his named comparator is an Irish national.

The Act defines ‘like work’ as work that is the “same”, “similar” or of “equal value”.

The Complainant contends that he engaged in work that was the “same” or “similar” to that of his comparator. The Respondent refutes that the Complainant and his comparator were engaged in “like work”, as the Complainant could not carry out essential physical work as he was based remotely in Slovakia.

While the amount of physical work carried out by the comparator was disputed, in the Court’s judgment, the roles carried out by the Complainant and his comparator were broadly similar in that both individuals provided IT engineering support to clients.  As a result, the Court is satisfied that the Complainant and his named comparator engaged in “like work” that was “similar” in nature.

The Complainant’s salary exceeded that of his named comparator by €5,000 annually. 

While the Complainant contends that he worked more hours than his comparator, that assertion was disputed by the Respondent.  Mr Leahy gave a cogent explanation for the different finishing times between the Complainant and the named comparator. The Court accepts Mr Leahy’s testimony, which it found credible and reasonable, that the comparator fulfilled his contractual working hours. The Court notes that the Complainant accepted in his evidence that he was received time-off-in-lieu (TOIL) for any hours worked outside of normal business hours.

In this case, the Complainant accepts that he was paid €5,000 per annum more than his named comparator. Based on the evidence adduced, the Complainant has not established to the satisfaction of the Court that he worked more hours such that it resulted in him receiving less pay than his than his comparator.

To succeed in an equal pay claim, the complainant must be treated less favourably than a comparator on one of the protected grounds.  Having regard to the facts presented in this case, Court finds that the Complainant has not identified any discrimination on the race ground, with respect to his pay.

6. Finding

For the reasons set out above the Court is satisfied that the Respondent did not discriminate against the Complainant in relation to his nominated Comparator. 

Accordingly, the Court finds the complaint under the Act is not well founded.

The Adjudication Officer’s decision is affirmed. The Court so determines.

	Signed on behalf of the Labour Court
	Katie Connolly
AL	______________________
12 September 2025	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Ms Amy Leonard, Court Secretary.