Decision DEC - E2010-148
(Represented by Richard Grogan & Associates, Solicitors)
t/a James Kavanagh Building Contractors
Employment Equality Acts 1998-2008, Section 6(1) - less favourable treatment , - Section 6(2)(h) - Race, Section 8- conditions of employment, prima facie case.
1.1 This dispute concerns a claim by a complainant that he was discriminated against by the above named respondent on the race ground, in terms of Sections 6(1), and6(2) (h) of the Employment Equality Acts 1998-2008 and contrary to section 8.
2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 8th of February 2008 alleging that the respondent discriminated against him contrary to the Acts. In accordance with her powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 13th May, 2010 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from the complainant on the 28th September 2008 and no response was received from the respondent. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 30th July , 2010
3. Summary of the Complainant's Case
3.1 The complainant is a Lithuanian national and was employed by the respondent to work on building sites from March 2007 until 30th of September 2007. The complainant's case is that the respondent discriminated against him in relation to his conditions of employment in that he failed to provide him with a pay slip, failed to pay his taxes and failed to give him a P 45 on the cessation of his employment. The complainant said that he worked on 2 sites one in Delgany and one in Dublin city centre. On first site there were 4 Irish employees and 1 other Lithuanian employee and on the second site there were 3 Irish employees a Latvian and 2 Lithuanians. The complainant said that he was paid by cash and he never got a payslip. He believes that the other non-Irish employees did not get payslips either. He could not say if the Irish employees got one. He submitted that no taxes were paid by the employer on his behalf and as a result he was not issued with a P45 and he could not claim any benefits as there is no record of his employment.
3.2 The Complainant's representative contended that the failure to provide such documentation to the complainant is a breach of the equality legislation. He submitted that because the respondent was not returning tax or social welfare contributions, the complainant could not show that he was working and residing in the country for the purposes of qualifying for social welfare. He said that they were unable to provide evidence that Irish employees were treated in a similar manner. He submitted that because the complainant is a Lithuanian national he is less likely to know his rights than an Irish employee. By not receiving payslips and a P45 foreign national employees are placed in a particularly vulnerable position compared with Irish employees. He submitted that the respondent failed to respond to the request from him seeking information about the complainant's employment. He submitted that I should draw inference from the failure to supply the information sought. He said that he accepted that if the respondent replied and indicated that he failed to give his employees a payslip, a P45 or pay their taxes that the complainant would have no case of discriminatory treatment. The complainant's legal representative, in his submission, also referred me to a number of cases in support of the case, including Campbell Catering Ltd. -v- Rasaq (EED048), 58 Complainants -v- Goode Concrete (DEC-E2008-020), Khumalo -v- Cleary & Doyle Limited (DEC-E2008-003), Golovan -v- Porturlin Shellfish Limited (DEC-E2008-032) and Ning Ning Zhang -v- Towner Trading t/a Spar Drimnagh (DEC-E2008-001).
4. The respondent did not attend the hearing or respond to the Tribunal when the complaint was served on them or when the Tribunal sought a submission in response to the complainant's claim.
5. Conclusions of the Equality Officer
5.1 The issues for decision in this case is whether or not the respondent discriminated against the complainant on the grounds of race , in terms of section 6(1) and 6(2)(h) of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts as regards his conditions of employment. Section 6 of the Acts inter alia provides:
6. -- (1) "For the purposes of this Act and without prejudice to its
provisions relating to discrimination occurring in particular circumstances,
discrimination shall be taken to occur where --
(a) a person is treated less favourably than another person is,
has been or would be treated in a comparable situation
on any of the grounds specified in subsection (2) (in this
Act referred to as the ''discriminatory grounds'') which --
(2) As between any 2 persons, the discriminatory grounds (and
the descriptions of those grounds for the purposes of this Act) are --
(h) that they are of different race, colour, nationality or ethnic
or national origins (in this Act referred to as ''the ground
and Section 85A of the Acts provides:
"(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".
5.2 This requires the Complainants to prove the primary facts upon which he is seeking to rely to raise an inference of discrimination. It is only when he has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. If the complainant does not discharge the initial probative burden required of him his case cannot succeed. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.3 Firstly, I will consider the issues that have been raised by the complainant in relation to his conditions of employment which he contends constitutes unlawful discrimination on the grounds of race contrary to the Acts. He submits that the respondent's failure to provide him with a pay slip, to pay his taxes and to provide him with a P45 was discriminatory treatment on the race ground. It was therefore submitted that the Tribunal should infer that the complainant has raised an inference of discrimination and that he has been subjected to less favourable treatment on the race and accordingly, that the burden of proof should shift to the respondent to rebut the inference of discrimination. I was referred to the above mentioned cases and in particular to the Labour Court Determination in the case of Campbell Catering Ltd. -v- Rasaq (EED048, and asked to apply the reasoning in the paragraph cited below.
"Before the complainant can succeed in her claim, the Court must be satisfied that she was treated less favourably that a comparator of a different racial origin is, was or would be treated in similar circumstances as those arising in the present case. The general approach which should be adopted in considering cases of racial discrimination was laid down by the House of Lords in Glasgow City Council v Zafar  2 All ER 953. This case was subsequently adopted in this jurisdiction by Quirk J in Davis v Dublin Institute of Technology, High Court, Unreported, 23rd June 2000 . In Zafar Lord Browne-Wilkinson pointed out that where there is a difference in treatment and a difference in race there is prima facie evidence of discrimination and it is for the respondent to provide a non- discriminatory explanation. This approach was adopted by this Court in Natoko v Citibank  ELR 3 116 wherein the Court explained its underlying rational as follows:
This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainant's power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach and which may only be in the respondents capacity of proof."
5.4 The solicitor went on to refer me to the Tribunal decision in the case of Golovan -v- Porturlin Shellfish Limited (DEC-E2008-032) and stated that this decision was particularly relevant in relation to the complainant about the non-payment of tax and the failure of the respondent to provide a P45. I am of the view that the reasoning in this case in relation to the tax issue is not applicable to the case in hand as the facts can be differentiated.
5.5 In considering the issues, I note from the evidence that there were workers from Latvian, Lithuanian and Ireland employed on the 2 sites the complainant worked on. I note that the complainants accepts that none of the foreign nationals got pay slips. He does not know if the Irish employees received one. He does not know if any of the employees had the tax deductions remitted to the Revenue. The complainant does not know if there were any tax deductions made from his wages because he received no pay slip. He is of the opinion that no tax was remitted to Revenue on his behalf and it was for this reason he was not given a P45.
5.6 In order to raise an inference of discrimination on the grounds of nationality, the complainants must first produce some evidence of less favourable treatment. I note that in the Campbell case cited above that the Labour Court went on to say in that determination following the passage quoted above that:
"This approach is entirely consistent with the procedural rule formulated by this Court in Mitchell v Southern Health Board  ELR 2001 and which is normally applied by the Court in all cases of discrimination. Under this rule, a complainant bears the onus of proving facts from which discrimination may be inferred. If that onus is discharged, the respondent bears the burden of proving, on the balance of probabilities, that there has been no infringement of the principle of equal treatment."
5.7 I find that the complainant has not adduced any such facts from which discrimination could be inferred. The complainant has made a number of allegations about discrimination not backed up by any facts. The respondents solicitor submitted that these facts are entirely within the knowledge of the respondent In considering this point I have considered the reasoning in the case Melbury Developments and Valpeters (Det. No. EA AO917) where the Labour Court stated:
"Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This 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 speculation 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 establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule."
5.8 The above reasoning of the Labour Court is applicable in this case in that the complainant has made assertions about discrimination unsupported by any cogent evidence. Having regard to the totality of the evidence adduced in the present case, I am not satisfied that the complainant has adduced any evidence from which I could reasonably conclude that he was treated less favourably than an Irish person or a person of a different nationality was treated or would have been, in similar circumstances, in relation to his conditions of employment. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to his complaint.
6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that the respondent did not discriminate against the complainant on the race ground pursuant to sections 6(1) and 6(2)(h) of the Acts in terms of his conditions of employment contrary to section 8(1) of the Acts.
6th August 2010