THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2011 - 225
Ms Tamara Muziene (represented by Richard Grogan and Associates, Solicitors)
Noonan Services Group Ltd (represented by IBEC)
File References: EE/2010/003
Date of Issue: 2nd December 2011
1.1. The case concerns a claim by Ms Tamara Muziene, who is a Lithuanian national, that she performed like work, in terms of section 7 of the Employment Equality Acts 1998 to 2008, with a named male, Irish comparator and is therefore entitled to the same rate of remuneration as paid to that comparator in terms of Sections 19 and 29 of the Acts.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 5 January 2010. A submission was received from the complainant on 17 May 2010. A submission was received from the respondent on 30 June 2010. On 29 June 2011, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 22 July 2011. Additional evidence was requested from the respondent at the hearing of the complaint and received on 12 September 2011. The last piece of correspondence relating to the complaint was received on 14 October 2011.
2. Summary of the Complainant's Written Submission
2.1. The complainant alleges that she performed like work within the meaning of the Acts with a named Irish, male colleague, yet earned a smaller hourly wage than he did.
3. Summary of the Respondent's Written Submission
3.1. The respondent accepts that the complainant and her comparator performed like work within the meaning of the Acts. However, the respondent argues that the difference in pay rates arose for reasons other than gender or race. It is the respondent's argument that market forces associated with increased industry competition and the economic downturn necessitated a re-negotiation of the client contract for the site on which both the complainant and her comparator worked. While the pay of the complainant's comparator, who had many years more service than the complainant, was left untouched, both the complainant and a male colleague who commenced work at the same time as her, and in the same role, were paid a lesser hourly wage. Other staff, which started after the complainant at the same site, and also in the same role, was paid an even lesser wage.
4. Conclusions of the Equality Officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent.
4.2. It is settled law that in cases involving equal remuneration, the prima facie case is whether the complainant and a named comparator performed like work within the meaning of the Acts. Since the respondent accepts that this was the case, the burden of proof shifts to the respondent, to show that the pay differential arose for reasons other than gender or race.
4.3. The complainant's comparator started his employment with the respondent in 2003. The representative of the respondent submitted that this was a time of economic boom and labour shortages, especially in industries like contract cleaning, which many workers might see as less attractive. Accordingly, the respondent paid its staff above the Joint Labour Committee (JLC) rate for the contract cleaning industry in order to source quality staff. The comparator's starting pay was €11.13 in 2003, while the JLC rate at the time was €7.20. In line with industry practice, this pay differential was maintained. Furthermore, the respondent expressly stated in their submission to the Tribunal that the comparator's pay was the normal rate of pay for the site of the public sector client organisation where both the complainant and the comparator worked. In other words, it was not paid to the comparator in recognition of special individual merits or performance.
4.4. Further to this point, the respondent submitted documentation dating from January 2010, from which it is clear that the entire group of possible comparators, that is, all staff at the client site who were in the grade of "GMP Operatives", comprised of four persons, two Irish staff who were being paid €13.73 per hour and the complainant and her Slovak colleague, who were paid €10 per hour. From this evidence, I am satisfied that the findings of the Supreme Court in National University of Ireland Cork v. Alan Ahern & Ors,  SC IE40, do not apply in that the named comparator was not in a special situation regarding his remuneration and was not "cherry-picked" for the benefit of the complainant in bringing her complaint.
4.5. At the hearing of the complaint, I also requested that the respondent submit evidence of how market forces were at play in the respondent's contract with the public sector organisation on whose site the complainant and her comparator performed their cleaning work. It is clear from the evidence submitted that the respondent billed this particular public sector client for continuous increases in their contract in line with increases in the JLC rates from March 2005 through to 1 May 2008, some six weeks after the complainant and her male colleague from the Slovak republic commenced their employment. Negotiations on the part of the public sector organisation to reduce the cleaning bill were not commenced before July 2008, and do not appear to have had significant results until nearly a year later, in June 2009, when the respondent agreed to reduce the amount charged to the client by 10%.
4.6. The respondent also sought to place some reliance on the fact that another cleaning operative at the same site, an Irish male who had commenced employment with the respondent in June 2010, earned €9.50 per hour, 50 cent less than the complainant.
4.7. However, while this staff member's remuneration could be explained by the re-negotiation of the client contract the year before, I do not find that the evidence submitted by the respondent supports its own argument in a credible manner, that it was market forces, and specifically, financial pressures brought to bear on the respondent by its client, which necessitated a lower pay rate with regard to the complainant and her Slovak colleague, compared to the named comparator. It is clear that the public sector client on whose site the complainant carried out her duties did not exert any pricing pressures on the respondent until after the complainant had commenced her employment.
4.8. In light of the fact that the complainant's colleague from the Slovak republic, who also started on a considerably reduced hourly rate, was male, I find that there is insufficient evidence that the complainant was discriminated against on the ground of her gender, but I am satisfied that she is entitled to succeed with her complaint on the race ground, since both herself and her Slovak colleague were non-Irish nationals, whereas her comparator was Irish.
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that Noonan Services Group Ltd discriminated against Ms Tamara Muziene in terms of equal remuneration on the ground of race contrary to S. 29 of the Acts.
5.2. I therefore order, in accordance with my powers under section 82 of the Employment Equality Acts, 1998-2011, that the respondent pay the complainant the same hourly rate of basic remuneration as that paid to the comparator for the period 3 March 2008 until her resignation on 11 June 2010. The calculation of these arrears should take account of any increases paid to both parties, and also be applied to all overtime worked by the complainant during that period.