THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
DEC - E2010-154
Kaspars Kuda, Edgars Eglite, Inge Eglite, Vikorija Girdzuna, Maris Virats, Raimonds Girdzuna, Kaspars Kadisevskis, Kaspars Hibshanis, Anna Vansovica and Vita Karklina
(represented by Ciara Bradshaw B.L. instructed by Grogan and Associates Solicitors)
versus
MJ Quay Developments Ltd.
File reference: EE/2006/218, EE/2006/366, EE/2006/367, EE/2006/400, EE/2006/424 and EE/2006/440
Date of issue: 30th August 2010
Keywords: Employment Equality Acts, Race, Gender, Discriminatory dismissal, Harassment, Equal Pay
Dispute
1.1. The case concerns a claim by ten Latvian complainants against MJ Quay Development Ltd. On their EE1 forms the complainants claim discrimination regarding conditions of employment leading to discriminatory dismissal (see table at Appendix 1) on the grounds of race contrary to 6(2)(h) of the Employment Equality Acts 1998 - 2008 [hereinafter referred to as 'the Acts']. Complaints in relation to harassment, discriminatory provisions in a collective agreement, victimisation and access to a pension scheme were withdrawn at the Hearing. Two of the complainants (Anna Vansovica and Vita Karklina) also claim that they are entitled to the same rate of remuneration as that paid to two named male comparators in accordance with the provisions of Section 19 (1) of the Acts.
1.2. Through their legal representative, the complainants referred their complaints under the Acts to the Director of the Equality Tribunal on 3rd October 2006. On 29th August 2008, in accordance with her powers under Section 75 of the Acts, the Director delegated the case to me, Orlaith Mannion, an Equality Officer for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date, my investigation commenced. A Hearing was held on 22nd July 2010 as required by Section 79(1) of the Acts. During the hearing, I interviewed the complainants and comparators about like work.
Preliminary issue - Non-attendance of 5 complainants
2.1 I notified the parties of the date of the hearing, by registered post, on 20th April 2010. I am satisfied that all reasonable efforts had been made to inform all ten complainants of the hearing. However, five complainants (Edgars Eglite, Inge Eglite, Viktorija Girdzuna, Maris Virats, and Raimonds Girdzuna) did not attend the hearing. In the light of the foregoing and in accordance with Section 79(6) of the Act I issue the following decision:
As part of my investigation under Section 79 of the Act, I am obliged to hold a hearing. I find that the failure of Edgars Eglite, Inge Eglite, Viktoria Girdzuna, Maris Virats, Raimonds Girdzuna to attend such a hearing was unreasonable in the circumstances and that any obligation under Section 79 has ceased. As no evidence was given at the hearing in support of the allegation of discrimination in relation to these five complainants, I conclude the investigation of their complaints and find against the complainants Edgars Eglite, Inge Eglite, Viktoria Girdzuna, Maris Virats, and Raimonds Girdzuna.
Summary of the complainants' case
3.1 Kaspars Kadisevskis, Kaspars Hibsmanis, Vita Karklina and Ann Vansovica complainants were employed as painters while Kaspars Kuda was employed as a teleporter driver. They submit that they worked extremely long hours from 7:00 a.m. until 6:00 p.m. Accommodation was supplied as part of their conditions of employment but they state that they were required to work an extra day to pay for their accommodation. This meant that they invariably worked a six-day week and occasionally a seven-day week. The complainants maintain that the accommodation provided was very cramped and that there were nine people sharing a two-bedroom house.
3.2 The complainants maintain that they never received health and safety training or documentation. They submit that they did not receive their terms and conditions of employment in writing either. In relation to this, the complainants cite 58 complainants v Goode Concrete .
3.3 Regarding their dismissal, the complainants submit that they were informed on a Monday by their supervisor (who was Polish) that their employment would be ending on the Friday and to make arrangements to move out of their lodgings by then. Because of the short notice, the complainants maintain that they had to sleep in cars for a few nights. As they were leaving, they submit that a bus of Polish people arrived to move into where they were previously living. The complainants submit that the Polish people were given their jobs (and accommodation) because they were willing to work for even less remuneration than the complainants were.
3.4 In relation to the equal pay claim, Ms Vansovica and Ms Karklina claim like work with Kaspars Hibsmnis and Kaspars Kadisevskis within the meaning of 7 (1) (a) (b) and (c) of the Acts. They submit that the four of them were painter/decorators and their work was interchangeable. Both of the men got €550 a week each in remuneration while the two women received €400 per week.
3.5 Other cases cited were Khumalo v Cleary and Doyle , Campbell Catering Ltd and Aderonke Rasaq , Zhang v Towner Trading , Golovan v Porturlin Shellfish Ltd .
Summary of the respondent's case
4.1 The respondent did not engage with the investigation except to submit that there was only one shareholder of MJ Quay Developments Ltd and he is deceased
Conclusions of the Equality Officer
5.1 Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The common discriminatory ground in this case is race. Therefore, I will deal with the complaints on the ground of race before dealing with the gender discrimination complaints which only involve two of the complainants. On the race ground, the issues for me to decide are:
(i) Were the complainants discriminated in relation to conditions of employment on ground of race in terms of 8(1)(b) of the Acts?
(ii) Were they discriminatorily dismissed by the respondent on the ground of race contrary to Section 8(6)(c) of the Acts?
5.2 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts.
Conditions of Employment - Race
5.3 All workers on this site were Latvian except for the supervisor who was Polish. As there are no actual comparators of a different nationality, the complainants are entitled to a hypothetical comparator. I found the evidence of all of the complainants present to be cogent, consistent and credible. I am satisfied that the provision of lodgings is a condition of their employment. I accept that they were required that to work an extra day to pay for their accommodation and that their lodgings were inadequate in the extreme. The complainants effectively paid €440 (male) and €400 (female) rent a month for exceptionally cramped accommodation in a rural location where the going rate for rent would have been a fraction of what they paid. I am satisfied that an Irish person in a similar situation would not be treated in the same way. Therefore, all five complainants have raised an inference of discrimination regarding their conditions of employment on the ground of race and the respondent has failed to rebut it.
Discriminatory Dismissal - Race
5.4 In relation to their termination of employment, I am satisfied that the evidence in relation to this issue has been evaluated and I have found the evidence of the complainants to be reliable. Under 6(1) of the Acts, I may consider how a comparator of an other nationality would have been treated. I find the extraordinary manner and effect of their dismissal, which also resulted in their eviction, to be discriminatory on the ground of race. On the balance of probabilities, I am satisfied that Irish employees in a similar situation would not have been treated in the same way. Therefore, I am satisfied that all five complainants were discriminatorily dismissed on the ground of race.
Equal Pay - Gender
5.5 Section 19 (1) of the Act provides that where A and B represent two people of the opposite gender it shall be a term of the contract under which A is employed that A shall at any time be entitled to the same rate of remuneration for the work 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 associated employer.
5.6 The existence of like work between a complainant and a named comparator is required to establish any entitlement to equal pay under the Acts. Therefore, I will first examine whether like work exists. For the purpose of establishing whether there was like work, I interviewed both the complainants and comparators. Due to the nature of their work (painting and decorating private houses), the fact that the complainants' employment was terminated and their employer is deceased, an onsite work inspection was not possible.
5.7 Like work is defined in Section 7 of the 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 regards to such matters as skill, physical or mental requirements responsibility and working conditions
In order to see whether or not the work of the complainants ( Anna Vansovica and Vita Karklina) and the named comparators (Kaspars Kadisevskis and Kaspars Hibsmanis) in their various roles is equal in value as per Section 7(1) (c), I will examine same under the headings of skill, physical or mental requirements, responsibility and working conditions. As the complainants have also claimed like work within the meaning of Section 7 (1) (a) and (b), I will also consider whether each of roles constitutes like work as per those subsections.
Comparison of work performed by complainants and comparators
5.8 Skill:
I find the skills required by the complainants equal to those required by the comparators. Neither the complainants nor the comparators had served apprenticeships as painter/decorators. They used the same tools and all were required to paint skirting boards, walls and ceilings.
Physical or Mental Requirements:
Similar levels of mental effort were required by both the complainants and comparators. I find that that the physical demands made on the complainants were equal to those made on the comparators. When I asked Kaspars Hibsmanis whether he would have carried heavy ladders and other equipment for the complainants, he laughed and said they are as strong as I am. Kaspars Kadisevskis concurred with this statement. I am satisfied that the physical requirements were the same for the complainants as for the comparators.
Responsibility:
Neither the complainants nor the comparators had a supervisory role. Therefore I find the complainants and the comparators had similar levels of responsibility.
Working Conditions:
The working conditions were very similar. Both the complainants and comparators were required to work a 6-day week.
5.9 The Labour Court point out that 'it is well settled that the law does not require a mathematical exactitude of equality between jobs before they can be regarded as equal in value under Section 7 (1) (c ) of the Act.' I find that the demands made on the complainants in terms of skill, physical or mental requirements, responsibility and working conditions are equal to the demands made on the comparators. Consequently, I find that Vita Karklina and Anna Vansovica performed 'like work' with Kaspars Kadisevskis and Kaspars Hibsmanis in terms of Section 7(1)(c) of the Act.
5.10 I find that all work done by the complainants and comparators was similar in nature as well as being interchangeable e.g. they took turns doing ceilings or skirting boards etc. Therefore, this also constitutes like work within the meaning of Section 7 (1) (a) and (b).
5.11 Once like work is established, the respondent must demonstrate that the difference in pay is on grounds other than the discriminatory grounds as per Section 29 (5) of the Act. As I have found like work between the complainants and the named comparators, the respondent must bear the burden of proof that the difference in pay is not connected to gender. Having evaluated the evidence presented to me, I find there are not grounds other than gender for the pay disparity.
Decision
I have concluded my investigation of the complaints of Kaspars Kadisevskis, Kaspars Kuda, Kaspars Hibsmanis, Anna Vansovica and Vita Karklina and hereby make the following decision in accordance with Section 79(6) of the Act. I find that
(i) The respondent discriminated against Kaspars Kadisevskis, Kaspars Kuda, Kaspars Hibsmanis, Anna Vansovica and Vita Karklina regarding their conditions of employment on the ground of race.
(ii) The respondent discriminatorily dismissed Kaspars Kadisevskis, Kaspars Kuda, Kaspars Hibsmanis, Anna Vansovica and Vita Karklina on the ground of race.
(iii)Ann Vansovica was engaged in like work with the two comparators from 17th April 2006 to 22nd September 2006 within thee meaning of Section 7 of the Act .There are not grounds other than gender.
(iv) Vita Karklina was engaged in like work with the two comparators from 12th June 2006 to 22nd September 2006 within the meaning of Section 7 of the Act. There are not grounds other than gender.
In accordance with Section 82 of the Act, I therefore order that
(a) the respondent to pay Kaspars Kadisevskis, Kaspars Kuda, Kaspars Hibsmanis, Anna Vansovica and Vita Karklina €5,000 each in compensation for the distress caused by discriminatory conditions of employment. This portion of redress is not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).
(b) the respondent to pay Kaspars Kuda €17,000 Kaspars Kadisevskis €6,000, Kaspars Hibsmanis €3,000, Anna Vansovica €6,000 and Vita Karklina €3,000 each in compensation for the distress caused by discriminatory dismissal. The amounts are based on the length of time each was employed by the respondent This portion of redress is not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).
(c) that Anna Vansovica is entitled to equal remuneration with the two comparators from 17th April 2006 to 22nd September 2006. As this portion of the redress is in relation to remuneration, it constitutes income for the purposes of the Income Tax Acts.
(d) that Vita Karklina is entitled to equal remuneration with the two comparators from 12th June 2006 to 22nd September 2006. As this portion of the redress is in relation to remuneration, it constitutes income for the purposes of the Income Tax Acts.
________________
Orlaith Mannion
Equality Officer
30th August 2010
Appendix - table of details of complaints
Complainants Kaspars Kuda Kaspars Kadisevskis Vita Karklina Anna Vansovica Kaspars Hibsmanis
Period of Employment May 2005 to 22nd September 2006 17th April 2006 to 22nd September 2006 12th June 2006 to 22nd September 2006 17th April 2006 to 22nd September 2006 12th June 2006 to 22nd September 2006
Grounds
Race X X X X X
Gender (Equal pay) X X
Discrimination
claimed
Conditions of
Employment X X X X X
Dismissal X X X X X