Decision DEC - E2010- 089
A Cleaning Operative
(represented by Alan Cormack BL instructed by Peter Connolly Solicitors)
A Contract Cleaning Company
(represented by Paul Dunne IBEC
Employment Equality Acts 1998-2008 - direct discrimination - Section 6(1), less favourable treatment -, Section 6(2)(f)-age, 6(2)(g) - disability ground, Section 6(2)(h) race ground, Section 7 - like work, Section 8(1)(b) - conditions of employment, Section 14A - harassment, Section 16- reasonable accommodation, Section 29 - equal pay, Section 29(5) - reasons other than the discriminatory grounds, Section 74(2) - victimisation, prima facie case.
This dispute involves a claim by a complainant that she was discriminated against by the above named respondent on the age, disability and race ground, in terms of section 6(1) & 6(2)(f), (g) and (h) and contrary to section 8 of the Employment Equality Acts, 1998 and 2008 in relation to his conditions of employment. The complainant is also claiming equal pay in accordance with section 29 of the Acts. The complainant also claims that she was harassed contrary to section 14A and victimise contrary to section 74(2) of the Acts and that the respondent failed to provide her with reasonable accommodation in terms of section 16 of the Acts.
In accordance with her powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 23rd of July, 2009 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. A hearing on the complaint was held on the 26th of November 2009 and the 22nd January 2010. The last correspondence was received on the 10th of February 2010.
2 Summary of the Complainant's case
2.1 The complainant, who is a Latvian national, was employed as a cleaner and started work with the respondent who is a contract cleaner in September 2000. At first she worked for the respondent in an electronic company and then in a pharmaceutical company in Newbridge. In October 2003 she was transferred to work in another branch of the same pharmaceutical company in Dublin. At the time this company was in start up phase. At first she worked days shifts in the drug substance room which was a specialised area and she had to wear a special suit and fill in report cards. In April 2004 she transferred to the night shift where she did general cleaning duties in the laboratories and had to complete a task sheet at the end of the shift. In December 2006 she attended her doctor and she was diagnosed with high blood pressure. Her doctor gave her a letter indicating that night shifts was having an impact on her health and that it would be helpful to her health if she could do day shifts. The complainant gave the doctors note to her supervisor and requested a transfer to a day shift. She said that her supervisor was not pleased. She was told that if she transferred to a day shift she would be on less wages. The supervisor told her that there was a vacancy in the clean room which was a specialist area. She was required to have good English and would have to do training. Her rate of pay would be the same as the night shift pay. The complainant commenced working in the clean room in January 2007. She said that she did not receive training and that the other cleaner (Ms. A) who was a Lithuanian national refused to show her the routine in the clean room despite the fact that she had experience working there. She kept asking her why she was working in the clean room. The complainant said that she was nervous because she was put under pressure by Ms A. She said that she did not get on with Ms. A who she said insulted and harassed her and commented to her about her age and suggested that she should not work there because of her age. The complainant said that she complained to the assistant manager about this treatment but he did not respond.
2.2 The complainant said that she had no difficulty in carrying out the work but she had difficulty in filling in the logs because she had not been given sufficient training. She had a meeting with her supervisor and the clean room co-ordinator at the end of January and she was transferred from the clean room to general cleaning on the day shift with a reduction in hours. The day shift rate of pay was lower than the rate in the clean room or the night shift rate. She was informed that her English was not good enough for the clean room. Her supervisor advised her to take English classes and said that if she moved up a level with her English she could go back to the clean room.
2.3 The complainant was transferred to an area within the pharmaceutical company known as QAQC. The complainant contacted her union and he wrote to the respondent concerning the complainant's shift transfer. She said that her working conditions changed after the union got involved. She said that she was treated badly by her supervisors in that she was overworked and bullied. Her work was monitoring closely and she was issued with warnings one which she refused to sign. She said that she was warned about putting the rubbish bags on the ground when the bins were full and had not been emptied on time. She was warned about not labelling a bottle containing cleaning agent but she believed that this was not a serious matter and that the warning was unfair. She said that she was paid less that two other employees who also worked with her in QAQC.
2.4 The complainant said that she made several requests to go back on the clean room shift and she had been promised by the assistant manager that she would be returning there in April and again in May 2007, but this did not happen. She said that she was overlooked, in favour of two other employees whose level of English was the same as hers, when vacancies arose in the clean room. She also said that she was refused holidays at Christmas 2007. She wrote to the company in May 2008 seeking her original night shift hours back. She was called to a meeting with management on the 27th May 2008. She attended together with an interpreter. She was informed that she would be given back the shift in the clean room provided she passed a series of tests in English. She submits she was victimised at that meeting because she was asked to withdraw her equality claims.
3. Respondents case
3.1 The respondent denies that the complainant was discriminated against . They submitted that they are a large cleaning company employing over 5,500 people 20% are non-nationals from 17 different countries. In April 2003, the company was awarded a very large and prestigious contract to provide cleaning services for a pharmaceutical company. They recruited over 100 staff of different nationalities to work in this company. There were a number of different areas where they respondent has to provide cleaning including specialised cleaning. The company manufactured intravenous drugs and for this reason they have a number of clean rooms. The staff the respondent allocated to clean room areas are required to partake in a six week specialised training programme. They were also required to have a good standard of English because they have to communicate with the staff in the pharmaceutical company and answer questions about the cleaning procedures. The Assistant Manager outlined the strict cleaning procedures which had to be adhered to and the mixing of cleaning chemicals in the clean room area and also the training of staff. These areas required very specialised cleaning in order to avoid any contamination. There was also a very strict record keeping requirement and cleaners were required to complete log books on completion of cleaning tasks. He said that they were very aware of the very high standards of cleaning required in this area and if the record of the cleaning carried out could not be verified it could result in batches of drugs having to be destroyed and this could impact on the respondent's contract with the pharmaceutical company.
3.2 The complainant was recruited in Latvia by the respondent in September 2000 and was allocated to work in a number of different companies. She was transferred to the Dublin branch of a pharmaceutical company in November 2003 and she carried out cleaning duties in a non-specialist area on night shift. On the 13th of December 2006 the complainant provided a medical certificate, stating that it would be helpful to her health if she could do day shifts. The contract manager spoke to the complainant and told her that she would be transferred to the next available daytime shift. A vacancy arose in the clean room area and it was a day shift and the complainant was transferred there on a month's trial. The clean room had a premium rate of pay which was the same as the night shift.
3.3 The contracts manager said that it had come to her attention from the trainer in the specialised area that the complainant's English was not up to the standard required in this area. A number of communication problems arose including problems completing log books. She called a meeting with the complainant and her supervisor. She advised the complainant that she was removing her from the clean room to an unclassified area, which did not attract a premium rate of pay for a period of three months to give her an opportunity to improve her English to a competent level. The contracts manager said that she told her that she would endeavour to have her reinstated back in the clean room if she achieved the required competency in English. They were informed by the complainant that she had undertaken language training but when the company tested her again her English was still not up to standard.
4. Conclusions of the Equality Officer
4.1 In this case, I must consider the complainant's claim that the respondent directly discriminated against her on the disability race and age ground in terms of section 6(1)(a) and 6(2)(f), 6(2)(g) and 6(2)(h) of the Employment Equality Acts 1998 and 2008, in contravention of sections 7 and 8 of the Acts in relation to access to employment, promotion/regrading, training conditions of employment and equal pay. I must also consider whether the complainant was harassed within the meaning of section 14A of the Acts and victimised contrary to section 74(2). In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the complainant. I must also decide if the complainant was engaged in like work under section 7 of the Acts with two named comparators and entitled to equal pay in accordance with section 29 of the Acts.
It is a matter for the complainant in the first instant to establish a prima facie case of discriminatory treatment. It requires the complainant to establish facts from which it can be inferred that she was discriminated against on the above mentioned grounds. 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.
4.2 The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell DEE 011, 15th February 2001 considered the extent of the evidential burden which a complainant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated 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 was no infringement of the principle of equal treatment."
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that she was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.
Section 85A. of the Employment Equality Acts 1998-2008 sets out the burden of proof as follows:
(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 her or her, it is for the
respondent to prove the contrary.
4.3 In considering Section 85A, as amended, the Labour Court stated in the case of Cork City Council v Kieran McCarthy, Determination No. EDA0821, that:
"Section 85A of the Act, as amended now provides for the allocation of the probative burden as between the parties. It provides, in effect, that where facts are established by or on behalf of a Complainant from which discrimination can be inferred it shall be for the Respondent to prove the absence of discrimination.
The Labour Court went on to say in that case:
"The type and range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may be appropriately be drawn to explain a particular set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can be drawn from those facts."
4.4 I am now going to consider the evidence in the light of the above and to determine whether the complainant has established a prima facie case. Section 6(1) of the Employment Equality Acts 1998 and 2004 provides:
"..... discrimination shall be taken to occur -
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')"
Section 6(2)(h) provides that as between any two persons, the discriminatory grounds are, inter alia:
(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as "the age ground"),
(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as "the disability ground"),
(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as "the ground of race"),
4.5 The first matter I will consider is the claim of discrimination on the disability ground. The complainant's doctor in a letter to the respondent requested a change in her working hours to a day shift for health reasons. The complainant said that she had made her supervisor aware that she had health problems including high blood pressure. The complainant submitted in evidence a medical report which stated that she had stress related high blood pressure and number of other medical problems including pains in her right shoulder and her back for which she was referred for further medical tests and a course of treatment and medication. The complainant's in her own evidence stated that she also had gynaecological problems and that she had an operation during 2007 and after her transfer to the day shift.
The respondent submits that the complainant did not have a disability within the meaning of the Act and that the company was not aware that she had high blood pressure as the certificate from the doctor requesting a change of shift did not specify any illness the complainant was suffering from. They also submitted that the complainant did not make them aware that she had suffered from any other health problems such as the ones she outlined to the Tribunal.
The definition of disability in Section 2(1) of the Acts is as follows:
''disability'' means --
(a) the total or partial absence of a person's bodily or mental
functions, including the absence of a part of a person's
(b) the presence in the body of organisms causing, or likely to
cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of
a person's body,
(d) a condition or malfunction which results in a person learning
differently from a person without the condition or
(e) a condition, illness or disease which affects a person's
thought processes, perception of reality, emotions or
judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or
which previously existed but no longer exists, or which may exist in
the future or which is imputed to a person;
4.6 I note that the doctor's certificate submitted by the complainant to the respondent requested a transfer to a day shift for health reasons. While the certificate submitted to the respondent did not specify the complainant's health problem, I am satisfied from the medical evidence provided at the hearing that the complainant had stress related high blood pressure and had other health problems including pains in her right shoulder and for which she underwent a number of medical tests and a course of physiotherapy and she was also prescribed medication. I note that the complainant's supervisor stated in evidence that she was aware that the complainant had health problems and that once she received a medical certificate requesting a transfer to a day shift for health reasons she was obliged to accommodate her. She said that she was also aware that the complainant underwent an operation during 2007 and understood that her health problems related to that operation.
4.7 The complainant's representative referred me to the case of Customer Perception Ltd v Gemma Leydon: Labour Court, E.L.R.101 where the Labour Court considered the definition of disability under section 2(1) of the Act. I note in that case the Labour Court considered the definition of malfunction and stated as follows:
"It is settled law that where a statue defines its own terms and makes what has been called its own dictionary, a Court or Tribunal may not depart from the definition given by the statute and the meaning assigned to the words used in the statute. Furthermore, if there is nothing to modify, alter or qualify the language which the statute contains, it must be construed in the ordinary and natural meaning of the words and sentences used.
Applying these well-known principles of statutory construction, it is clear that the term disability must only be given the meaning ascribed to it by section 2 of the Act. It would be impermissible for the Court to rely upon a definition derived from any other source, including the American authorities to which it was referred by the respondent. Further, in construing the plain language used in this definition, words must be given their ordinary and natural meaning.
Taking the ordinary and natural meaning of the term malfunction, (connoting a failure to function in a normal manner), the condition from which the complainant suffered in consequences of her accident amounted to a malfunction of parts of her body. It thus constituted a disability within the meaning of the Act. Moreover, in providing that the term comprehends a disability which existed but no longer exists, it is clear that a temporary malfunction comes within the statutory definition.
For all of the foregoing reasons, the Court has no doubt that the complainant's condition amounted to a disability within the meaning of the Act."
4.8 I note that the complainant suffered from a number of conditions including high blood pressure. In applying the above reasoning of the Labour Court to the meaning of malfunction and to the complainant's condition of high blood pressure, I am satisfied that the word "high" indicates that the complainants blood pressure was not normal and "connoting a failure" of the complainants blood "to function in a normal manner". The evidence indicates that the complainant's high blood pressure was more than a temporary occurrence. However even if it was of a temporary nature it is clear from the Labour Court reasoning that a temporary malfunction of her blood pressure comes within the statutory definition of disability. I find that the complainant has a disability within the meaning of section 2(c) of the Acts; in that that the condition of high blood pressure is a malfunction of a part of a person's body.
I note from the medical evidence that the complainant also suffered a number of other health problems including pains in her right shoulder for which she received treatment and medication and she also underwent an operation. I am satisfied that these conditions comes within the meaning of a malfunction as defined above and constitutes a disability within the meaning of the Acts.
4.9 The respondent submitted that they were not aware that the complainant had a disability because the medical certificate did not specify any illness the complainant was suffering, it merely requested a change to a dayshift for health reasons. I note that the respondent did not ask the complainant about her health nor did they request further medical certification. Likewise I note that the complainants request for a change from night to day shift was facilitated. I am satisfied therefore that the respondent was well aware that the complainant had a health problem.
For all of the foregoing reasons I am satisfied that the complainant had a disability within the meaning of the Acts in December 2006 when she requested a transfer to a day shift for health reasons.
4.10 The next matter I have to consider is whether the respondent provide the complainant with reasonable accommodation in accordance with the Acts. The complainant disputes that she was provided with reasonable accommodation. Section 16 of the Acts provides:
"For the purposes of this Act a person who has a disability
is fully competent to undertake, and fully capable of
undertaking, any duties if the person would be so fully
competent and capable on reasonable accommodation
(in this subsection referred to as ''appropriate
measures'') being provided by the person's employer.
(b) The employer shall take appropriate measures, where
needed in a particular case, to enable a person who has
a disability --
(i) to have access to employment,
(ii) to participate or advance in employment, or
(iii) to undergo training,
unless the measures would impose a disproportionate
burden on the employer.
(c) In determining whether the measures would impose such
a burden account shall be taken, in particular, of --
(i) the financial and other costs entailed,
(ii) the scale and financial resources of the employer's
(iii) the possibility of obtaining public funding or other
(4) In subsection (3) --
''appropriate measures'' in relation to a person with a disability --
(a) means effective and practical measures, where needed in a
particular case, to adapt the employer's place of business
to the disability concerned,
(b) without prejudice to the generality of paragraph (a), includes
the adaptation of premises and equipment, patterns of
working time, distribution of tasks or the provision of
training or integration resources, but
(c) does not include any treatment, facility or thing that the person
might ordinarily or reasonably provide for herself or
4.11 The complainant G.P. considered that she was no longer fit for night work because of her disability and the appropriate measures she required to accommodate the disability was to transfer to a day shift. I note that once the complainant requested a change of shift that the respondent accommodated her initially on a day shift in the "clean room" which attracted the same premium rate of pay which she enjoyed when she worked on the night shift. Likewise I note that when the respondent transferred the complainant from the "clean room" and they accommodated her on a day shift as requested by her doctor. I find therefore that the complainant was provided with appropriate measures to accommodate her needs in accordance with section 16 of the Acts.
4.12 The next matter for consideration is whether the complainant treated less favourably by the respondent on the disability and race grounds than another person contrary to Section 6 of the Act. In support of her contention that she was discriminated against on both grounds the complainant submitted inter alia that:
- her supervisor was reluctant to transfer her to the day shift,
- that she would lose her premium shift if she transferred,
- that she required good English to work in the clean room,
- she was transferred to the clean room and she received no training in particular filling out log books
- that Ms. A who worked alongside her refused to show her the routine
- that Ms. A harassed her and put her under pressure and made comments about her age
- that the company refused to deal with her complaints and transferred her to a day shift which had shorter working hours and did not attract a premium payment and suffered a great reduction in pay.
- that other people with the same standard of English as she has were transferred into the clean room.
- She was refused holidays at Christmas 2007.
4.13 The respondent submitted that the complainant was transferred from the night shift at her own request. They tried to accommodate with a day shift in the clean room which attracted a premium rate. The complainant was put on trial there for a month and her standard of English did not meet the requirement for that particular specialised area and was unable to understand the training and fill out the log books. They transferred her to a day shift which attracted a lower rate of pay. The complainant was informed if she improved her English she would be reinstated in the clean room. The complainant agreed to undertake English language training at her own expense Following a test the complainant still had not reached the standard required to work in this particular area. The submitted that she was unable to understand basic cleaning terms used by the company. The respondent also submitted that all the employees who worked in the clean room required a competent level of English and they denied that they transferred any employee to the clean room who did not meet the required standard. They submitted that they could lose the contract if their employees were not trained sufficiently in order to explain the cleaning process they were carrying out to either member of staff at the pharmaceutical company or to one of their customers.
4.14 I note that the respondent made every effort to accommodate the complainant on a shift other than a night shift and the only shift which had a premium rate was in the clean room. I am satisfied that a standard of English was a requirement to work in this specialised area and that the complainant did not meet this standard. A certain standard of English was not a requirement in other areas. The complainant had to be accommodated on a day shift due to her disability and the only one available was a day shift in QAQC an area which had no premium payment. I note from the evidence that the respondent gave the complainant an opportunity to meet the standard of English required including assistance from an interpreter. Likewise I note that the respondent, with a view to returning her to the clean room, tested her English following receiving confirmation from the complainant that she had taken English classes. The complainant was unable to meet the standard required and for this reason she was not transferred back to the clean room.
4.15 In relation to the complaint of discrimination on the race ground, I note from the respondents evidence that there were people from seven different countries, whose first language was not English, were working in the clean room. I am satisfied that the complainant's transfer from the clean room to a day shift, which did not attract a premium rate of pay, had no connection whatsoever with her disability or race. The complainant also complained that she did not receive training particularly in filling out logs in the clean room. I note from the training records submitted by the respondent that the complainant did in fact receive training. I am satisfied from the evidence that the complainant's lack of competency in English impacted on her ability to fully partake in the training provided for the employees working in the clean room and in particular she was not able to complete the logs books to a satisfactory level as outlined to her at the training. I note that the complainant complains that she was not trained or helped in her work by Ms. A. I am satisfied from the evidence of the respondent that it was not the duty of Ms. A to train the complainant. They worked together in a "buddy" system performing certain tasks together and the training was provided by both the respondent and the pharmaceutical company. I find therefore that there is no evidence to support the complainant contention that she was treated less favourably than another person would have been treated in a similar situation on either the disability or race ground. I find therefore that the complainant has not established a prima facie case of discriminatory treatment on the disability and race grounds.
4.16 The complainant also submits that she was discriminated against on the age ground. The complainant submitted in evidence that when she worked in the clean room that Ms. A whom she worked alongside made comments about her age and asked her why she was working. The complainant said that she felt under pressure from the work while she was working in the clean room. The respondent submitted that the employees were of all different ages and denied that the company discriminated on the age ground. The respondent submitted a list of the employees in the clean room and their ages. The complainant produced no evidence to support her contention that Ms. A made the comments as alleged. I note that the respondent employees in the clean room were both older and younger than the complainant. I am satisfied that the complainants age was not the reason she was removed from the clean room. It is my view that the lack of a sufficient standard in the English language was the main reason she felt under work pressure in the clean room. I find no evidence to support the complainants claim that she was discriminated against on the age ground. Likewise, I find that the complainant has failed to establish a prima facie case of discriminatory treatment on the age ground.
4.17 The complainant also claims that she was harassed contrary to Section 14A of the Acts on the disability, race and age grounds. Section 14A of the Acts defines harassment as:
"any form of unwanted conduct related to any of the discriminatory grounds, and........ 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."
The Act goes on to give examples of unwanted conduct and states:
(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."
The complainant submits that after she was transferred to the day shift as set out above that she was over worked and bullied. She said that she was monitored closely and that she was given several oral warnings and two written warnings. The warnings related to a number of issues including the failure to label cleaning sprays and leaving rubbish next to bins and about a failure to finish tasks on time. She said that she never had received warnings before and believed that they were connected to her complaint to the union about the change of shift. The respondent submitted that the warnings were warranted and had no connection to her complaint to the union. It was submitted that when the complainant worked the night shift she had no supervisor and this was the reason she had not received warnings in the past. The respondent outlined in detail the danger attaching to the failure of an employee to label a cleaning spray.
I note that the complainant accepts that she failed to label the cleaning sprays and this was contrary to company procedures. I am satisfied that the warnings had no connection to the complaint to her union. Likewise I am satisfied that the warnings issued to the complainant cannot be construed as harassment accordance with section 14A of the Acts. Therefore I find no evidence to support the complainants contention that she was harassed contrary to the Acts and consequently she has failed to establish a prima facie case of harassment on any of the grounds cited above.
4.18 The next matter for consideration is victimisation. Section 74(2) provides that:
(2) For the purposes of this Part 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
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a
(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
(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 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 complainant submits that she was victimised in that complaints were made about her work and she was warned about her work, her pay and hours of work were reduced, the company refused to give her holidays at Christmas 2007 and she was asked to drop her case with the Equality Tribunal. The complainant said that she required holidays at Christmas so that she could return to Latvia to get medical treatment.
4.19 The complainant also submitted also that she was called to a meeting with the Director of Operations of the company and during the course of the meeting proposals were put forward for her return to her shift in the clean room and that she was requested to withdraw her equality claim. The complainant's representative referred me to Article 11 of the Council Directive 2000/78EEC which defines victimisation and asked me to have regard to the jurisprudence of the European Court of Justice in the case of Coote v Grenada Hospitality  E.C.R. 1-051999 Case C-185/97 where the ECJ held that Article 6 of the Directive on Equal Treatment would be deprived of an essential part of its effectiveness if the national legislation did not provide protection against victimisation. I was also referred to the Labour Court decision in the case of Watters Garden World Limited v Panuta EDA098/2009 where the Court stated that:
"This was pointed out by the ECJ in Case C-185/97, Coote v. Granda Hospitality Ltd  IRLR 656, in which the Court said: -
'The principle of effective judicial control laid down in Article 6 of [the Directive on equal treatment] would be deprived of an essential part of its effectiveness if the protection which it provides did not cover measures which, as in the main proceedings in this case, the employer might take as a reaction to proceedings brought by an employee with the aim of enforcing compliance with the principle of equal treatment.'
The Court is satisfied that this case is authority for the proposition that the concept of victimisation should be construed as widely and liberally as can fairly be done and should be given a sufficiently wide ambit so as to encompass all forms of detriment inflicted on a worker by his or her employer for having committed a protected act."
I was also referred to and asked to have regard to the following cases of the Equality Tribunal which considered victimisation and the seriousness which it is regarded by the Tribunal:
A Complainant v A Department Store DEC-E2002-017
O'Brien v Computer Scope Limited DEC-E2006-030
Sanni v Tesco Ireland DEC-E2006-031
A Female Employee v A Candle Production Company DEC-E2006-035
4.20 The respondent submitted that in a response to a letter from the complainant, requesting a return to a premium rate shift with more working hours, they set up a meeting with the complainant. They were anxious for the complainant to return to the clean room provided her English met the standard required. They put forward a number of proposals. The complainant did not fulfill the conditions namely meet the standard of English required and was not transferred back to a day shift with a premium rate of pay.
The letter from the respondent stated inter alia as follows:
In an attempt to resolve the historic difficulty and create a solution going forward the following was proposed:
- Elvira will commence an English language course immediately with the objective of developing to an intermediate level within 3 months.
- The company will provide an English language test to assess current levels and forward site specific developments which Elvira will need to comprehend and respond to.
- Elvira will remain in her current role with existing rate of pay during this period.
- Subject to review in her current role with existing rate of pay during this period.
- Subject to Elvira developing her English language skills to level required to perform in one of the specialised areas, the company will commit to offering Elvira the next available position.
- It is noted that Elvira does not wish to work a night shift despite the contents of the letter of the 18th of April and the company will commit to providing a day shift position which will attract the premium rate.
This proposal is being put forward as a means of re-establishing positive working relationships with you and an understanding that the equality claim will be withdrawn.
4.21 The respondent also submitted they were entitled to warn the complainant about dangerous practices such as leaving cleaning agents without labels. In relation to the holidays, they submitted that the complainant was refused holidays because it was not possible to let all the applicants for holidays during the Christmas period go on holidays because they needed a cleaning staff over the Christmas period. In any event the complainant went out sick and submitted medical certificates. Their contract with the pharmaceutical company provides that cleaning is carried out every day of the year. They also submitted that the holidays for Christmas were approved earlier in the year and at the time the complainant looked for holidays shortly before Christmas it was too late to facilitate her.
4.22 I am not satisfied that the warnings the complainant received about her work could be construed as victimisation. She states that she never received warnings while she worked on the night shifts. I note however that the complainant accepts that she did not label some of the cleaning agents she used and that she left rubbish beside the bins when they were full. I accept the respondent's evidence that leaving cleaning agents without labels was a dangerous practice. I am satisfied that regardless of whether the complainant had taken a complaint of discrimination under the Act that she would have received warnings for being in breach of company rules and procedures particularly in relation to health and safety. For this reason I find that the warnings had no connection with the complaint of victimisation.
In relation to the meeting where the complainant discussed proposals with the respondent for her return to the clean room, I am not satisfied that there was any pressure put on the complainant to withdraw her complaint. The proposals put forward were in the context of getting the complainant up to speed with the English language so that she could return to the clean room and earn the premium rate of pay. I am not satisfied that these negotiations or the letter as outlined above could be construed as victimisation in accordance with Section 74(2). I also find that the complaint about the Christmas 2007 holidays cannot amount to victimisation under the Act. For the above reasons, I find therefore that the complainant has not established a prima facie case of victimisation.
4.23 The next matter I have to consider is equal pay. The complainant submits that she was entitled to equal pay with 2 named comparators, Mr. B and Mr. C. She said that 2 employees were moved from the premium rate shifts and worked alongside her doing the same work on the day shift in QAQC and that they retained their premium rate while she did not. The complainant claims that she was directly discriminated against on the grounds of disability, race and age in contravention of Section 29 of the Acts in relation to pay. She accepts that she was not aware of the circumstances of the transfer of either of the named comparators to the day shift. She said that her rate of pay was reduced from €11.88 to €9.55 per hour on her transfer from the premium rate shifts.
The respondent submitted that the complainant was not entitled to the same rate of pay as either of the two comparators. They submitted that Mr. B was a team leader and was not the same grade as the complainant and therefore not employed on like work. He was transferred to the day shift for disciplinary reasons and under union/management agreements he was entitled to maintain the same rate of pay. They submitted that his position was "red circled"
The respondent submitted that Mr. C, who was the same grade as the complainant, was transferred from the night shift following a reduction in the night shift team from 4 to 2 operatives. He had a premium rate of pay on the night shift. It was intended that he would be transferred to the gowning area which attracted a premium rate of pay, but this position did not become available. He worked in the QAQC area alongside the complainant for 4 weeks until he was transferred to the clean room, a position which attracted a premium rate of pay. He kept the premium rate of pay while he worked with the complainant because under a union/management agreement a person who is transferred by the company from a premium rate shift to a non-premium rate shift is entitled to 4 weeks notice of transfer. Mr. B was given insufficient notice of his transfer and was therefore entitled to keep the premium allowance.
4.24 Section 7(1) of the Acts provides:
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,"
and Section 29 provides:
29. -- (1) "It shall be a term of the contract under which C is
employed that, subject to this Act, C shall at any time be entitled to
the same rate of remuneration for the work which C is employed to
do as D who, at that or any other relevant time, is employed to do
like work by the same or an associated employer.
(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."
4.25 I note that the complainant's comparator, Mr. B, is a employed as a team leader and the complainant is employed as an cleaning operative. Having examined the job descriptions I am satisfied that the complainant is not employed on like work to Mr. B. I am also satisfied that in accordance with the union/management agreement on disciplinary matters that Mr. B's pay was "red circled". Having regard to Section 29(5) of the Acts I am satisfied that there were grounds other than the discriminatory grounds of disability, race and age for the differences in the rate of pay paid to Mr. B.
4.26 I note that following Mr. C's transfer to QAQC he was employed on like work to the complainant for a period of 4 weeks pending his transfer to the clean room and he retained his premium rate of pay during this period.
Section 29(5) above states that an employer may pay different rates of pay on grounds other than the discriminatory grounds. I note that Mr. C was transferred from the night shift by the company due to the reduction in night shift operatives from 4 to 2. Likewise I note that the intended job for Mr. C did not materialise and he was transferred to the complainant's area without loss of premium pay pending his transfer to the clean room. Furthermore I note that Mr. C was not given the required 4 weeks notice by the company of his transfer and he was therefore entitled to retain the premium rate of pay in accordance with the union/management agreement. I am therefore satisfied that Mr. C maintained the premium rate of pay for reasons other than the discriminatory grounds of disability, race or age in accordance with section 29(5) above. I am satisfied that the complainant is not entitled to equal pay with either of the named comparators. I find therefore that the complainant has failed to establish a prima facie case of discrimination in respect of pay on the disability, race or age grounds.
5.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
(i) the respondent did not discriminate against the complainant on the disability, race and age grounds pursuant to sections 6(2)(f), 6(2)(g) and 6(2)(h) of the Acts in terms of her conditions of employment and training and contrary to section 8(1) of the Acts;
(ii) the respondent did not discriminate against the complainant on the disability ground pursuant to section 6(2)(h) of the Acts in relation to the provision of reasonable accommodation to the complainant in accordance with section 16 of the Acts.
(iii) the respondent did not harass the complainant on the disability, race and age grounds pursuant to sections 6(1)(a) and 6(2)(f), 6(2)(g) and 6(2)(h) of the Acts and in terms of section 14A of the Acts.
(iv) the respondent did not victimise the complainant on the disability, race and age grounds in terms of section 74 of the Acts.
(v) the respondent did not discriminate against the complainant on the disability, race and age grounds in relation to pay pursuant to sections 6(2)(f), 6(2)(g) and 6(2)(h) of the Acts and in terms of section 29 of the Acts.
4th June 2010