FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : MARKS AND SPENCER (IRELAND) LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MUSTAFA GULGEN (REPRESENTED BY MICHELLE GULGEN) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal under Section 83 of The Employment Equality Acts, 1998 to 2011
BACKGROUND:
2. This case is an appeal under Section 83 of The Employment Equality Acts, 1998 to 2011. A Labour Court hearing took place on 12th March 2013. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Mr Mustafa Gulgen against the Decision of an Equality Officer under the Employment Equality Acts, 1998 – 2011 (“the Acts”) concerning allegations of discriminatory treatment in relation to promotion/re-grading contrary to Section 8 of the Acts, that he was victimised contrary to section 74 and that he performs "like work", in terms of Section 7 with two named comparators and is entitled to equal remuneration in accordance with Section 29 on the grounds of race contrary to Section 6 of the Acts.
The complainant referred his claim under the Employment Equality Acts to the Equality Tribunal on 9thDecember 2009.
The Equality Officer held that the Complainant had failed to establish aprima faciecase of discrimination in relation to promotion/training, victimisation and equal pay on the basis of the race ground and the complaint fails.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Mustafa Gulgen will be referred to as the “Complainant” and the Marks & Spencer (Ireland) Limited will be referred to as the “Respondent”.
The complainant referred his claim under the Employment Equality Acts to the Equality Tribunal on 9thDecember 2009.
The Equality Officer held that the Complainanthad failed to establish aprima faciecase of discrimination in relation to promotion/training, victimisation and equal pay on the basis of the race ground and the complaint fails.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Mustafa Gulgen will be referred to as the “Complainant” and the Marks & Spencer (Ireland) Limited will be referred to as the “Respondent”.
Background
The Complainant is Turkish and a naturalised Irish citizen, he commenced employment with the Respondent on 2nd April 2007 as a Section Managerin the Dun Laoghaire store.He commenced on the first point of a six point Section Management Scale Performance Development Review (PDR) Annual Scoring Scheme. In January 2008 he was assessed under the PDR and was rated at the first point “Effective A”. He was further assessed in August 2008 and October 2009 and was similarly rated as “Effective A”. On each occasion he appealed the assessments, none of the appeals were upheld.
The Complainant sought approval to apply for transfers to other stores on three occasions. On 7thNovember 2007 he applied to transfer to the Grafton Street store; on 3rdJune 2008 to the Athlone Store; and on 26thMay 2009 to the Clarion Quay store. Approval was refused on each occasion.
Preliminary Issue
At the outset of the hearing Ms Máiread Crosby, IBEC, on behalf of the Respondent raised a preliminary matter and held that the Court lacked jurisdiction to hear thecomplaint as it was not submitted within the time period specified by Section 77 (5) of the Act. Ms Crosbysubmitted that therewasnothingpreventingtheComplainant from bringinghis claim within the required timeframe. In support of her contention, Ms Crosby citedcaseofBirmingham and Mater Christi Secondary School & ASTI/JMB Appeals Board, where the Equality Officer ruled that as there was no evidence to support a claim of reasonablecause to extend the
time limit, therefore the complaintwasout of timeandwasdismissed.
Ms Michelle Gulgen, on behalf of the Complainant stated that while a number of the alleged incidents cited, save two, occurred more than six months from the date on which the matter was referred to the Equality Tribunal,she submitted that they should be taken into account as they demonstrate a bias on the part of the Respondent to discriminate against the Complainant on the grounds of his race and can be considered as on-going discrimination by the Respondent. Furthermore, she submitted that the Complainant has been the victim of a sustained pattern of victimisation as a direct result of making a complaint of discrimination concerning anincident which occurred on26th October 2007.
Court’s Findings on the Preliminary Issue
The Court proposed to the parties that it should proceed with the preliminary point in relation to the time limit and stated that incidents which occurred before 10thJune 2009 could only be considered if those incidents which occurred within the time limit and the other incidents complained of were sufficiently connected so as to make all of them part of a continuum. This would depend on establishing aprima faciecase of discrimination and of victimisation which allegedly occurred in the period after that date.
The gist of the Complainant’s case appears to be that the Respondent had adopted a policy of denying him an increase in pay under its Performance Development Reviews and/or refusing to promote/transfer him to another store because of his race and/or because he had earlier made a complaint of discrimination. The Complainant contended that he was paid less than two named comparators of Irish origin who perform the same work, whose work is interchangeable with him and is of equal value.
The requirement to identify incidents and adduce facts in relation to occurrences relied upon that fell within the time limit under Section 77(5) of the Acts was explained to the Complainant’s representative by the Court. If these occurrences were found to be acts of discrimination or of victimisation then the Court would hear evidence in relation to all of the occurrences relied upon. If, however these occurrences where found not to have involved discrimination or victimisation the complaint relating to the earlier occurrences could not be entertained having regard to Section 77(5) of the Acts as the most recent occurrences would have been outside the time limit.
The incidents which Ms Gulgen cited as falling within the six month time period are as follows:
- •It was alleged that at an unannounced meeting held on 14thMarch 2009, Mr K, Store Manager threatened the Complainant that he would not succeed in a PDR review or receive a pay rise.
- •Following his seeking approval to apply for a transfer to the Clarion Quay store in May 20089 the Complainant received a letter dated 19thJune 2009 from his Store Manager rejecting his application for a transfer due to his lack of commercial acumen. It was alleged that the reason why he lacked the appropriate skills for a transfer, stemmed from an incident which he alleged occurred on 7thMarch 2008when the Store Manager at the time threatened that he would not work in another store and that he would not sign off on his Section Manager Career Path (SMCP) training.
Court’s Conclusion on the Two Incidents Complained of Above
Having examined the first allegation the Court is satisfied that no inference of discrimination on the race grounds can be deduced from the alleged contents of the meeting which took place on 14thMarch 2009. The Complainant’s representative accepts this point but alleges that it is part of a continuum of bias on the race grounds shown to the Complainant by the Respondent and originates from the discrimination complaint he made in October 2007.
The Court cannot accept that the mere coincidence of the Complainant making a complaint of discrimination in October 2007 and his subsequent failure to obtain a higher rating in his PDR is a sufficient basis from which to draw an inference of victimisation. Accordingly, the Court cannot accept that this acts or omission can be regarded as a continuum for the purpose of Section 77(6A).
In relation to the second incident, the Complainant’s representative stated that on 7th March 2008 at a meeting between the Complainant and the Store Manager, Mr S about setting objectives, the Complainant stated that he did not understand something. Mr S replied that he should be able to as he spoke "plain English". The Complainant perceived this to be a clear attempt at highlighting the fact that he was of a different race, ethnic origin and nationality to Mr S and was particularly objectionable, given that, he had the benefit of hindsight to know that the Complainant had previously found such remarks upsetting as he had made clear when he complained to him remarks made by a colleague, Ms K on 26thOctober 2007.
The Respondent stated that the Complainant had undergone extensive training in accordance with its training policy for Section Managers and stated that while SMCP was an active policy within its UK operations it was not formally introduced into the Irish operation until January 2009.
The Court notes the contents of the letter dated 19thJune 2009 from Mr K to the Complainant following his application for a transfer to the Clarion Quay store:-
- In response to your letter dated the 6th June 2009, I would like to clarify my position on not providing line manager recommendation for the vacancy in Clarion Quay store.As discussed in our meeting on the Tuesday June 2nd I explained the reasons for my decision was based on my assessment of your performance over the last year and your two interim reviews in that time.I also expressed my satisfaction in your most recent performance as having moved on significantly, however, I had to base my decision over the whole year whilst I have been
manager of Dun Laoghaire.
The areas I explained in our meeting relate to your consistency in approach to commercial acumen and being proactive in making decisions and providing solutions to issues.Whilst there has been an improvement in these areas in recent weeks which I have already addressed, I have not observed a consistent pattern in your application to managing and influencing your areas of responsibility.This has been previously discussed in your most recent review.
As I informed you at our meeting I will be conducting a formal review in the coming weeks to agree on objectives and targets for the remainder of 2009/10. This will provide furtherclarity on the expectations of your role and standards required to ensure that there will be no ambiguity in providing a line recommendation for vacancies in the future.
Signed by the Store Manager, Mr K.
The Court is of the view that this letter gives balanced feedback to the Complainant on why his application has not been successful and leaves the door open for possible future transfers. It is clear that there is no overt discrimination on the race ground contained in the letter; this point was accepted by the Complainant’s representative.
In relation to the both incidents complained of, the Court notes that the Store Manager involved in the meeting held on 14thMarch 2009 and the Store Manager involved in the 7th March 2008 meeting were two different Store Managers.
If the Court were to accept that a connection could be made between the contents of this letter and the7th March 2008 incident cited above, then this would involve a conspiracy between various employees of the Respondent. The Court is not satisfied that the Complainant has produced credible evidence from which theexistence of such a conspiracy could be inferred.
Having considered the oral and written submissions made by both parties the Court is satisfied that there is no basis upon which the Court could conclude that either of the incidents relied upon by the Complainant within the time limit establish aprima faciecase of discrimination or victimisation.
Accordingly, the Court must conclude that no acts capable of constituting victimisation occurred in six-months period ending on the date on which he presented his claim to the Equality Tribunal and all other incidents relied upon are outside the time limit prescribed by Section 77(5) and are statute barred.
Equal Pay Claim
Section 29 (1) and (2) of the Act, provide as follows:
- 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.
(2) For the purposes of subsection (1), in relation to a particular time, a
relevant time is any time (on or after the commencement of this section) which falls during the 3 years which precede, or the 3 years which follow, the particular time.
The Complainant contended that he was paid less than two named comparators of Irish origin who perform the same work, whose work is interchangeable with him and is of equal value. The Complainant was on €18.12 per hour while his comparators were paid €19.48 per hour.
The Respondent stated that it employs263Section Managers in Irelandand 178areemployed within Dublin. Ms Crosby pointed out that there aresix pointson theSection Management Scale which are directly related to the manager’s skills and Performance Development Reviews,therefore she contended thatit would be appropriate for differentindividualsto beplaced on different points of the scale. Ms Crosby submitted details of the scale and the number of Irish and non-nationals at each point of the scale. This data indicated that of the managers in the Dublin region 34 were on the rate of €18.12 per hour i.e. the Effective A rate – of these 24 were of Irish origin and 10 were of non-national origin; 33 of whom were on the rate of €19.48 of which 21 were of Irish origin and 12 were of non-national origin. The data provided stated that 19% of those on Effective A had been on that scale in excess of three years.
Ms Crosby also pointed out that while one of the named comparators was on the lower rate when the Complainant commenced employment with the Respondent, the second comparator had already been placed on the higher rate due to her abilities and performance.
The material facts of this case are not seriously in dispute. It is accepted by the Respondent that the Complainant was engaged in like work with that of the nominated comparators. The comparators who received a higher rate were of a different nationality to the Complainant. However, in order to succeed in his claim of discrimination the Complainant must establish, as a matter of probability, that the difference in pay is attributable to his race or nationality.
On the facts of this case it is clear that the rate of pay was entirely performance linked and had no connection whatsoever with nationality, there were six points on the scale and the rate at which a Section Manager was paid was entirely dependent on abilities and performance. The Court notes that the Complainant moved from Effective A to Effective B after a period of three years (post the date of claim) which was not unusual in the circumstances.
Therefore, the Court is satisfied that the Complainant was treated in exactly the same way as the comparators in terms of rates of pay, accordingly, he was did not suffer discrimination in terms of Section 29(1) of the Act.
Determination
For all of the reasons set out in this Determination the within appeal cannot succeed and the decision of the Equality Tribunal is affirmed.
Signed on behalf of the Labour Court
Caroline Jenkinson
25th April 2013______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.