THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011 - 068
Mr Evaldas Paulavicius and Mr Marijus Barauskas
(represented by Richard Grogan & Associates)
Kelly Brothers (Roadline) Ltd.
(represented by CIF)
File Reference: EE/2007/170&192
Date of Issue: 31st March, 2011
Headnotes: Employment Equality Acts, 1998 & 2004 - Section 6(2)(h), Race Ground - Section 8(1)(b), Conditions of Employment - Section 8(1)(c), training - section 8(6)(c) dismissal - notional Irish comparator - contract of employment - pay - no equal pay claim - working hours - health and safety training
1.1. This case concerns complaints by Mr Evaldas Paulavicius and Mr. Marijus Barauskas (hereinafter referred to jointly as "the complainants") that they were discriminated against by Kelly Bros (Roadline) Ltd. ( hereinafter referred to as "the respondent") on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts in relation to (i) conditions of employment, (ii) dismissal and (iii) training contrary to sections 8(1)(b), 8(6)(c) and 8(1)(c) of the Acts.
2.1. On 26th March, 2007, Mr. Paulavicius referred a complaint under the Employment Equality Acts to the Director of the Equality Tribunal alleging that the respondent had discriminated against him on the ground of race (with respect to nationality).
2.2. On 16th April, 2007, Mr. Barauskas referred a complaint under the Employment Equality Acts to the Director of the Equality Tribunal alleging that the respondent had discriminated against him on the ground of race (with respect to nationality).
2.3. Written submissions were received from both parties. On 1st November, 2010, in accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Gary O'Doherty, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts (hereinafter referred to as "the Acts"), on which date my investigation commenced.
2.4. A hearing of the complaint was held on Wednesday, 17th November, 2010. Additional documentation was also sought from the respondent after the hearing and final correspondence in this respect was received from the respondent on 21st January, 2011.
3. Summary of the Complainant's case
3.1. The complainants are Lithuanian nationals. Mr Paulavicius submitted that he was employed from 15th September 2005 to 22nd December 2006, although he submitted that his P45 shows his starting date as 14th August, 2006. Mr Barauskas submitted that he was employed by the respondent from July 2005 to 22nd December, 2006.
3.2. Mr Paulavicius said that he was "let off" for the Christmas holidays in December 2005, but denied he received a P45 at this time. He said that he was told that once they had more work, he would be able to return to work and, after contacting the respondent on three occasions, he was told he could return to night work on 20th February, 2006. He said that from April to May 2006 he requested a P45 as he had to "go to Social Welfare" and said that in August 2006 his health deteriorated because of the respondent's working conditions. He said that he was issued with a P45 by the employer in that respect but he returned to work shortly after.
3.3. The complainants submitted that they were dismissed in December 2006 with no notice being given. In that regard, they stated that they were given an envelope without any explanation by Mr A, one of the Directors of the company. They stated that, when they opened this envelope, they found a P45 inside and received no further contact in relation to the matter from the respondent.
3.4. The complainants submitted that the procedure that should have been applied to their dismissal was never notified to them by the respondent, though they were not aware of anyone else who was dismissed to whom different procedures were applied. They submitted that the procedure that was applied was discriminatory as it would not have been followed in relation to a notional Irish comparator as they would have known of the correct procedures.
3.5. The complainants submitted that they were aware that the Respondent took on additional employees in January 2007 who had not previously been employed, including a Polish national. They said they did not see any other employees themselves, but heard it from someone who worked for the respondent. However, they would not give the name of the person who gave them this information.
3.6. In relation to the dismissal, the complainants referred to the decision of the Tribunal in the case of 58 named Complainants -v- Goode Concrete and the case of the Labour Court in the case of Campbell Catering -v- Rasaq. In that respect, they essentially submitted that these cases indicated that in disciplinary procedures, employers had a positive duty to ensure all workers fully understand what is alleged against them, and that special measures may be necessary in the case of non-Irish nationals to ensure that this positive duty is fulfilled, and so applying the same procedural standards to a non-Irish national worker as would be applied to an Irish national could amount to the application of the same rules to different situations and could in itself amount to discrimination. They submitted that this was had occurred in their case.
3.7. The complainants stated that they did not receive any training until after they had been working for the respondent for at least three months, and then only one day of safety training, which was provided in English. They denied the respondent's allegation that they were provided with all relevant Health and Safety training. They were not aware if anyone else received any other training.
3.8. Mr Paulavicius also referred to an incident where he said an inspector came to check that he had received safety training and that he was told to use the Safepass card of a Russian worker when they came around to check if he had one, as he said he had not been given Safepass training by the respondent and so had no card.
Conditions of Employment
3.9. The complainants submitted that they worked excessive hours. They outlined at the hearing the hours they had to work including 12-13 hours per day without overtime, working all through the night in breach of the Organisation of Working Time Act and working long hours on Saturdays. Mr. Barauskas said that no Irish workers were required to work on Saturdays, although under questioning he stated that he thought maybe Irish people worked at weekends on the roads. The complainants named a person, Mr B, who was Irish and who, they said, was treated more favourably than they were in terms of working hours and general conditions of employment and they gave examples of this alleged more favourable treatment.
Issues relating to pay
3.10. The complainants submitted that they were construction workers but were not paid in accordance with the Registered Employment Agreement for the Construction Industry ("the REA") and they did not receive terms and conditions which complied with the REA. They submitted that their rights were not complied with and that they were not paid at the rate they were entitled to be paid. The complainants submitted that an Irish national employed in the construction industry would have been aware of their employment law rights and their pay entitlements.
Contracts of Employment
3.11. The complainants stated that they did not receive any proper contract of employment nor any contract at all. They said they were not aware if any other workers received contracts of employment and/or health and safety statements.
3.12. They submitted that under the Equality Officers decision in 58 named Complainants -v- Goode Concrete, there is an obligation on an employer to provide a Contract of Employment in a language likely to be understood by the Complainants. They accepted that this case does not directly apply where a contract has not been provided in the first place but submitted, nonetheless, that a foreign national who does not receive a contract of employment is in a particularly vulnerable position. They submitted that, as the REA applies, Irish workers would understand their rights whereas foreign workers would not and so it is important to provide foreign national workers with information as regards their basic terms and conditions because they are foreign workers.
3.13. The complainants also submitted that they did not receive Health and Safety documentation. They submitted that this is required under the Safety Health and Work Act and, they submitted, as a result of the decision in Goode Concrete. As foreign nationals not conversant in Irish Health and Safety Law, the complainants submitted that there is an obligation on the part of the respondent to provide them with a Health and Safety statement in a language likely to be understood by them and the failure to do so amounts to discrimination. The complainants submitted that a notional Irish comparator would have received such a statement.
3.14. The complainants submitted that the Tribunal should look at a notional comparator and not necessarily a comparator within the respondent firm. The complainants also submitted that the complete lack of documentation requires consideration of the issue as to what would be the position concerning a notional comparator. The complainants also submitted that at no stage were they advised of their right to raise a grievance as is required by the Code of Practice and Grievance and Disciplinary Procedures and therefore no method was open to them to raise any issues.
3.15. A number of matters relating to conditions of employment and access to employment were withdrawn by the complainants at the hearing.
4. Summary of the Respondent's case
4.1. The respondent submitted that it is a small company with no dedicated HR representative and without any sophisticated policies and procedures. Mr. A stated at the hearing that all workers were treated the same. However, the respondent accepted that it was unaware of the legal obligation to issue employees with contracts of employment or health and safety statements and did not provide any of its employees, either Irish or foreign nationals, with such documentation.
4.2. Mr. A said that he was not sure whether he had provided health and safety documentation, but thought it was provided in English if it was provided. However, he stated that, when it employed workers, it advised them of their terms and conditions. He stated these explanations were given in English, and that the complainants spoke to him in English. The respondent said it was satisfied that the complainants' English was sufficient to have understood their terms and conditions as outlined to them by Mr A in their interview. Furthermore, Mr A said that the complainants would have been in a crew including Irish people and said that there had to be effective communication or the job was too dangerous.
4.3. The respondent submitted that the complainants were not dismissed without notice. It submitted that they were dismissed along with a number of employees, both Irish and non-Irish, due to a downturn in work. Mr A stated that the work the respondent did was busy from Spring until the end of the year. He said that, at the beginning of 2006 it employed 43 people, 34 of whom were Irish and 9 of whom were non-Irish. (Details of the nationalities of these employees were provided to the Tribunal after the hearing). He said that, on 22nd December 2006, 10 workers were made redundant, 4 of whom were non-Irish and 6 of whom were Irish. He stated that the complainants were among those workers made redundant at this time. However, he said that they were aware when they were hired that they would be laid off after Christmas and that from January to March they did not "take on anyone".
4.4. Mr A said that he would have mentioned to the complainants a week or two before they were dismissed that they would be dismissed. He stated that he couldn't remember the reaction of the complainants when he told them they would be receiving a P45. He said that he wouldn't have handed them their P45, as this would have been done through their accounts office. He denied the complainants' evidence in that respect. He also denied that any workers were employed in January 2007 as, at that time, he said it was hard to keep the workers they have going. He said that he would only hire someone at that time because they had a special skill.
4.5. Mr. A added that Mr Paulavicius accepted that he was let go in early 2006, and rehired later that year. He also added that from 4th August to 14th August, 2006, Mr Paulavicius was not employed by the respondent as when he rang him on 4th August, 2006, to find out where he was, he said he was on his way home to Lithuania and so he issued him with a P45.
4.6. The respondent submitted that, while it may not have provided the appropriate documentation to the employees, all relevant and necessary training was provided. Mr A stated that the local authorities have strict rules and regulations regarding safety and all its workers would have undergone Safepass training. Mr A confirmed that the Russian worker named by the complainant was in possession of a Safepass. However, he denied that he would have asked either complainant to use someone else's Safepass card.
4.7. Mr A said that the basic working hours of the respondent's workers were from 8 a.m. to 6 p.m. daily and that overtime was required from time-to-time. He said that all the respondent's workers were treated equally in that respect and that Saturday working was not restricted to non-Irish workers and he explained the procedure that would apply to Saturday working. The respondent submitted that, in addition, all of its employees worked the same number of hours with all relevant breaks provided.
4.8. The respondent submitted that it is not covered by the REA as it does not fall into schedule two of the types of companies listed in the agreement.
4.9. The respondent submitted that the central tenet of its argument is that, while it accepts that some employment legislation may have been breached, it did not discriminate on the basis of race. It submitted that, given that purported breaches of employment law have already been referred to the Labour Relations Commission under the appropriate legislation, it is difficult to ascertain why the case has also been referred to the Equality Tribunal as it submitted that there is no evidence of discriminatory treatment on the basis of race.
5. Conclusions of the Equality Officer
5.1. Section 85A of the Acts sets out the burden of proof which applies in a claim of discrimination. In the first instance, it requires the complainant to establish facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that 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. Therefore, in deciding on this complaint, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2. Section 6(1) of the Acts provides that discrimination shall be taken to occur where "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)...". Section 6(2)(h) of the Acts defines the ground of race as being "as between any two persons ..... that they are of different race, colour, nationality or ethnic or national origins.." It follows that the complainants must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because they were Lithuanian.
5.3. The issue for decision by me in this case, then, is whether or not the respondent discriminated against the complainants on grounds of race, in terms of section 6(2)(h) of the Acts and contrary to section 8 of the Acts in terms of conditions of employment and/or dismissal and/or training. In reaching my decision in this case, I have taken into account all of the submissions, both oral and written, made to the Tribunal in the course of its investigation.
5.4. In relation to the alleged discriminatory dismissal, the complainants allege that the respondent gave them their P45's in an envelope without any notice or without following any procedures in relation to the dismissal. The respondent denies that this was the procedure that was followed in relation to their dismissal. It submits that it informed them a week or two before they received their P45's. It asserts that the nature of its work is that it is busy at certain times of the year, and has to let people go at the end of the year, but may rehire them the following spring once work picks up. In short, that the work is seasonal albeit with a long working season. It stated that both complainants were aware of this when it first employed them.
5.5. The question for me to decide in relation to the dismissal is whether the complainants were dismissed in circumstances which were less favourable than would have applied to them had they been of a different nationality. I am satisfied based on the evidence presented that the complainants were aware that they were hired only until the end of the year and may or may not be rehired the following spring. In particular, it is clear that that is exactly what had happened to Mr Paulavicius in concluding his employment in 2005 before being rehired in Spring 2006. I am satisfied that this arose from the nature of the employment rather than any less favourable treatment of the complainants arising from their nationality. It was therefore not discriminatory.
5.6. I would add that the evidence of the complainants that others were hired early in the following year is unconvincing. In any event, if such rehiring did take place, I am satisfied that it took place in the context of the seasonal nature of the respondent's employment practice. I would add that the person concerned was identified as being Polish, which would detract from the complainants' submission that they were treated less favourably to an Irish person in this respect.
5.7. As regards the procedure that was followed in relation to their dismissal, I am satisfied that the complainants were presented with P45's by the respondent as described by them. However, I am also satisfied that they would have been well aware that their employment would be terminated at that time and that this was the practice of the respondent with respect to workers such as themselves and so they would not have been surprised to receive their P45's in those circumstances. In any event, I am not satisfied that this treatment was any different to the treatment afforded any other workers of any nationality who were dismissed by the respondent at the end of the year. It was therefore not discriminatory.
Conditions of Employment
5.8. The complainants stated that Mr B, and others, worked fewer hours than they did. However, in Melbury -v- Valpeters, the Labour Court stated that "...mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn." Therefore, it is not enough for the complainants to state that Irish workers worked fewer hours. They must provide an evidential basis for that assertion such as by providing documentary evidence or witness evidence to corroborate these assertions or at the very least giving convincing first-hand accounts of the factual basis upon which they are making the assertions in question. They have failed to do so to my satisfaction, particularly in light of the respondent's assertion that all its workers worked similar hours.
Issues relating to pay
5.9. The complainants made submissions and gave evidence in relation to overtime and remuneration. However, in accordance with Section 8(6)(a) of the Acts, complaints relating to remuneration are excluded from consideration under conditions of employment. Such complaints must be made as part of an Equal Pay claim, and such a claim has not been properly made to the Tribunal.
Contracts of Employment
5.10. Finally, with respect to conditions of employment, the complainants refer to the decision of the Labour Court in Campbell Catering and the decision of this Tribunal in Goode Concrete and submit that they were discriminated against by not being provided with contracts of employment in a language likely to be understood by them. It is clear that none of the employees who worked for the respondent at the time in question were provided with contracts of employment. In that respect, the present case can be distinguished from Goode Concrete as in that case the respondent's employees, including the complainants, were provided with contracts of employment.
5.11. In the present case, the complainants also submit that, as foreign workers, they would not understand their rights as well as Irish people would and, in that context, the failure of the respondent to provide them with a contract of employment at all is discriminatory vis-à-vis a notional Irish comparator who would have understood his/her rights irrespective of whether contracts were provided to others or not. The complainants also submit, inter alia, that the complete lack of documentation provided by the respondent in relation to existing comparators would give rise to a need to look at a notional comparator because it cannot be assessed what the position was in relation to existing comparators.
5.12. In the case of Arturas Businkas v Eupat Ltd (In Liquidation) the Labour Court indicated that it would not hesitate to use hypothetical comparators where it is found that existing comparators, for one reason or another, are not suitable. However, it went on to state that no reason was adduced as to why the existing comparators in that case were not suitable and, in that context, it stated that "it is not sufficient..to ignore actual comparators and assert that a hypothetical Irish employee would not have been treated in the same manner by the respondent".
5.13. I agree that the documentary evidence provided by the respondent, even to specific requests from the Tribunal, is scant to say the least. There is certainly very little documentary evidence that corroborates its submissions in relation to this complaint. Nonetheless, I am satisfied that the situation as to how Irish workers were treated with respect to their contracts of employment is quite clear as the procedure that was applied to the complainants was applied uniformly (see par. 5.16 below). In those circumstances, I see no reason to consider a notional comparator over an existing comparator and will now consider the complainant's submission in this context.
5.14. The statutory requirement on employers to provide employees with a written statement of certain terms of their employment under the Terms of Employment (Information) Act, 1994 is enforceable through the Rights Commissioner (at first instance) and not this Tribunal. Similarly, alleged breaches of health and safety legislation have a separate avenue for redress.
5.15. In any event, the Tribunal has clearly outlined in a number of recent decisions that it is not the case that an employer is necessarily obliged to provide a contract of employment to a non-Irish national in a language likely to be understood by them in any and all circumstances. What an employer must do is to take reasonable steps to ensure that such an employee who does not fully understand the terms and conditions of their employment as laid out in their contract of employment is made fully aware of those terms and conditions, as well as the rights that are provided within the contract. At the very least, it must ensure that such an employee is not treated less favourably as a consequence of any lack of knowledge of those rights.
5.16. I am satisfied that the terms and conditions of the complainants' employment were explained to them by Mr A when they started working for it. I am satisfied that this conversation was limited to discussions about pay, working hours and the seasonal nature of the employment, and that this was the same conversation that Mr A had with all the respondents employees, such as the complainants, who were hired for seasonal work, and applied irrespective of nationality. Given such discussions were basic, I am satisfied that the complainants understood those instructions.
5.17. In that context, the complainants were not treated less favourably than anyone else in the same or similar circumstances, who was or would have been provided with similar induction (for want of a better word to describe these conversations). Thus, I cannot see how there was any difference in the treatment of the complainants vis-à-vis comparable Irish workers who actually worked for the respondent, in relation to the terms and conditions of their employment, never mind less favourable treatment.
5.18. In all the circumstances of the present complaint, then, the failure of the respondent to provide the complainant with a contract of employment was not discriminatory and the complainants have failed to establish a prima facie case in that regard.
Health and Safety Training
5.19. With respect to the issue of health and safety training, it is clear to me that the only training the complainants received from the respondent was a one day course on Manual Handling which they participated in some weeks after they had started working for the respondent. However, in order to establish a prima facie case, the complainants must establish facts of sufficient significance to raise a presumption that they were treated less favourably than someone of a different nationality had been, was or would have been in the same or similar circumstances in this respect.
5.20. In that context, the complainants again submit I should consider what the position would be with respect to a notional comparator for similar reasons to those outlined in paragraph 5.11 above. In essence, they submit that because they were not as aware of the training requirements of the job as an Irish person would be, and because the respondent has failed to provide any information in relation to existing Irish comparators, that I should find that a notional Irish person, in the same or similar circumstances, would have been provided with more and/or different training.
5.21. The information provided by the respondent is virtually non-existent in this context. Furthermore, it has failed to provide any records relating to the complainants' Safepass status and/or training despite repeated requests from the Tribunal for it to do so. I am satisfied that these documents are not available as they do not exist. However, and while I am satisfied that the respondent did ask Mr Paulavicius to use the Safepass of a Russian worker when an inspection was carried out by the Health and Safety Authority, I am satisfied, in all the circumstances of the present case, that the person concerned was already in possession of a Safepass prior to commencing work with the respondent.
5.22. It is clear to me that the respondent did not intend to provide the complainants with any training, if that was possible, and that the training that was provided to them was only provided because it was absolutely necessary to provide it in order to enable the complainants carry out their assigned tasks. However, it is also clear that the respondent took this approach because the complainants were temporary seasonal workers, and not because of their nationality. I do not consider that, in the same or similar circumstances, any Irish person was or would have been treated any differently by the respondent in that respect.
5.23. I am satisfied that the complainants were not provided with Safepass training, and were not in possession of Safepasses while working on site for the respondent. However, as the complainants have failed to establish a prima facie case of discrimination on the ground of race with respect to this, or any other health and safety training, that is a matter for the Health and Safety Authority and not this Tribunal.
5.24. As there are no further elements to the complainants' cases, it is clear that they have failed to establish a prima facie case of discrimination on the ground of race (with respect to nationality) and their complaints therefore fail.
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:
6.2. I find that the complainants have failed to establish a prima facie case of discrimination of them in relation to dismissal contrary to Section 8(6)(c) of the Acts;
6.3. I find that the complainants have failed to establish a prima facie case of discrimination of them in relation to conditions of employment contrary to Section 8(1)(b) of the Acts;
6.4. I find that the complainants have failed to establish a prima facie case of discrimination in relation to training, contrary to Section 8(1)(c) of the Acts;
6.5. Accordingly, the complainants' cases fail.
31st March, 2011