THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2013
Tatyana Kirova, Zhivko Mistov, Petar Petrov & Lilyana Petrova
ISS Ireland Limited
File Reference: EE/2008/334, 336, 337, & 340
Date of Issue: November 2012
Keywords: Employment Equality Acts 1998-2011, Section 6(1) - less favourable treatment, - Section 6(2(a)(b)(h) – gender, marital status and race, Section 8- conditions of employment, dismissal.
1.1 This dispute concerns a claim by the above named complainants that they were discriminated against by the above named respondent on the gender, marital status and race ground, in terms of Sections 6(1), 6(2) (h) of the Employment Equality Acts 1998-2011 and contrary to section 8 in relation to their conditions of employment and dismissal. The complaints in relation to gender and marital status were withdrawn during the course of the hearing.
2.1 The complainants referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 26th May 2008 alleging that the respondent discriminated against them contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011 the Director delegated the cases on 12th June, 2012 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. A written submission was received from the complainants on the 3rd November 2008 and from the respondent on the 28th June 2012. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 4th July 2012 and the final documentation was received on 5th October 2012.
3. Summary of the Complainants’ Cases.
3.1 The complainants are Bulgarian nationals and they all worked with the respondent as cleaners and Mr Zhivico Mitsov was also a supervisor. They are all complaining of discriminatory treatment in relation to their conditions of employment and dismissal. They submit that the respondent dismissed them because of issues in relation to their work permits. The complainants said that they had no complaints whatsoever against the respondent in relation to their employment except that they could not get a work permit to continue working.
3.2 Mr Mitsov said that he had an English work permit which gave him permission to work in Ireland. He came to Ireland with this work permit and changed jobs to the respondent company. He was informed by the Gardaí that the work permit he had did not give him permission to work in Ireland. He then asked the employer about a work permit and he understood from his manager that he had applied for a work permit for him. He enquired from the manager about it and he was informed he did not need a permit. Mr. Mitsov said that he understood that he did not need a work permit because Bulgaria was now a member of the EU. He said that he continued to work and in or around April 2008 he was called to a meeting with his manager and he was informed that he was being dismissed because he had no work permit. He then received a letter of dismissal dated 3rd of April 2008.
3.3 Ms.Tatyana Kirova said that she started working with the respondent in January 2007 and she did not have a work permit. She was provided with a PPS number without any difficulty and she believed that she did not need a work permit. In April 2008 the manager called the eight Bulgarian nationals working in the company, including all the complainants, to a meeting and told them that they needed a work permit to continue working. Applications for work permits were filled out by the manager and after about 4 months Ms. Kirova was informed by the manager that the application was unsuccessful but she was not given any reason. In September 2008, together with the other complainants, she was called to a meeting with management and informed that the Department of Enterprise, Trade and Employment had refused work permits for them and they were dismissed from the employment. Her employment was then terminated. The complainant submitted that she had no complaint against the respondent except that she was dismissed for having no work permit.
3.4 The complainants, Ms. Lilyana Petrova and Mr. Petar Petrov, said that they were working in Ireland on a English work permit which allowed them to work in the circus. They then applied for work with the respondent and they believed the work permit they had covered them for this employment. They were also of the view that once Bulgaria joined the EU they no longer needed a work permit. They were then informed by the manager that they needed a work permit and the company applied to the Department for one. The applications were unsuccessful and they were dismissed.
4. Respondent’s case.
4.1 In March 2008 it came to the attention of the respondent that the complainants are of Bulgarian nationality and required work permits. The respondent wrote to them requesting clarification on their employment status and they were asked to provide evidence that they could legally work in Ireland. Numerous requests were made for the documentation and the company had discussions with the SIPTU. It transpired that the complainants had no valid work permits.
4.2 In June 2008 the company made an application for work permits to the Department of Jobs and Enterprise, however the correct procedures were not followed and the applications were refused. In July 2008 the respondent made another application but this was also rejected. Even though Bulgaria was a member of the EU, there was a requirement for workers from Bulgaria to have a work permit to work in Ireland. Therefore the complainants were employed illegally as the employer held no valid work permits. The respondent said that he had no option but terminate the complainants’ employment. It was submitted that the complainants were not dismissed for discriminatory reasons.
5. Conclusions of the Equality Officer
5.1 The issues for decision in this case is whether or not the respondent discriminated against the complainant on the a ground, in terms of section 6(1) of the Employment Equality Acts, 1998 to 2011 and contrary to section 8 of those Acts as regards conditions of employment and dismissal. Section 6 of the Acts inter alia provides:
6.—(1) "For the purposes of this Act and without prejudice to its
provisions relating to discrimination occurring in particular circumstances,
discrimination shall be taken to occur where—
(a) 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’’) which—
(2) As between any 2 persons, the discriminatory grounds (and
the descriptions of those grounds for the purposes of this Act) are—
(h) that they are of different race, colour, nationality or ethnic
or national origins (in this Act referred to as ‘‘the ground
and Section 85A of the Acts provides:
"(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 him or her, it is for the respondent to prove the contrary”.
5.2 This requires the Complainants to prove the primary facts upon which they rely in seeking to raise an inference of discrimination. It is only when they have discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. If the complainants do not discharge the initial probative burden required of them, their cases cannot succeed. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.3 The complainants complain that they were discriminated against on the race ground in relation to their conditions of employment and dismissal. I note that the complainants had no valid work permits and the respondent was refused a work permit for each of the complainants. The Employment Permits Acts 2003 to 2006 as amended provides as follows:
"2.(1) A non-national shall not-
(a) enter the service of an employer in the State, or
(b) be in employment in the State,
except in accordance with an employment permit granted by the Minister under s. 8 of the Employment Permits Act 2006 that is in force.....
(2) A person shall not employ a non-national in the State except in accordance with an employment permit granted by the Minister under s.8 of the Employment Permits Act 2006 that is in force..... .
(3) A person who contravenes subsection (1) or (2) or fails to take the steps specified in subsection (2B) shall be guilty of an offence and shall be liable …….”
5.4 The complainants who are Bulgarian nationals required valid work permits to work in Ireland and the employer had no option but to terminate their employment because he could not obtain work permits for them from the Department. In order to establish discriminatory treatment the complainants have to establish that they were treated less favourably than a person of a different nationality. I am satisfied that the respondent had no option but to dismiss the complainants when he could not get a work permit for them, otherwise he was in breach of the above cited Employment Permits Acts. I am satisfied from the evidence that the complainant’s were not treated less favourably than a person of a different nationality, who required a work permit to work in Ireland, was or would have been treated in similar circumstances. Accordingly, I find that the complainants have failed to establish a prima facie case on the race ground in relation to their conditions of employment and dismissal.
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 2011. I find that:
(i) the respondent did not discriminate against the above named complainants on the race ground pursuant to sections 6(1), and 6(2)(h) of the Acts in terms of their conditions of employment and dismissal contrary to section 8(1) of the Acts.
23rd December 2013