The Equality Tribunal
Employment Equality Acts
(Represented by Richard Grogan & Associates)
- V -
(Represented by Kevin Callan B.L.
instructed by Dorothy Walsh & Co, Solicitors)
File references: EE/2012/193
Date of issue: 12 November 2013
Keywords - Employment Equality Acts – Discriminatory Treatment – Equal Pay - Race – Prima Facie Case
1.1 This dispute concerns a claim by the complainant that he was subjected to discriminatory treatment by the respondent on the grounds of race and that the respondent breached the principal of Equal Remuneration in terms of Sections 6(2) and 29 of the Employment Equality Acts and contrary to Section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 26 March 2012 under the Employment Equality Acts. On 30 September 2013, in accordance with his powers under section 75 of the Acts, the Director then delegated the cases to Conor Stokes - 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 which date my investigation commenced. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 25 October 2013. Additional information relating to the complaint was received up to 7 November 2013. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant is a Polish national and is employed as a warehouse operative since 10 April 2006.
2.2 The complainant submitted that both himself and the named comparator do the same work, they both work as pickers, operate forklifts and do loading. The complainant earns more.
2.3 The complainant submitted that he had an accident at work while the comparator was injured in a football match. The complainant received no Christmas bonus while the comparator did receive one in similar circumstances.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent submitted that there is no evidence that the Complainant suffered an accident in the workplace.
3.2 The respondent submitted that the complainant was paid a lower rate of remuneration than the comparator, denied that it breached the principle of equal remuneration and gave a reason for this which was other than his race. The respondent submitted that the complainant was hired at the same rate as the complainant but that he was hired two years earlier than the complainant and that the intervening wage increases account for the pay differential. The comparator received a €1000 euro pay rise in the year following his commencement (2005) and the complainant received the same pay rise within his first year of employment. The comparator received two further pay rises in 2006 and 2007 and this accounts for the differential.
3.3 The respondent submitted that the complainant’s brother was also employed. He began at the same starting rate but when he took on additional responsibilities he was given a pay rise of €3000 in 2007.
3.4 The respondent submitted that during 2011, the comparator was paid his bonus even though he had 30 days sick leave, because his performance was without reproach consistently throughout the year and consistently during his employment. In addition, while on sick leave, the comparator complied with the reporting policies and procedures in place to deal with sick leave absence. During the same period, the complainant took approximately 50 days sick leave, which continued despite medical advice that he was ready to return. The complainant’s general performance was very poor and he repeatedly breached the reporting policies and procedures in place to deal with sick leave absence.
3.5 The respondent submitted that during the same period, 2011 the complainant’s brother was paid his bonus thereby undermining the suggestion that the non-payment was related to the complainant’s race.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent treated the complainant in a discriminatory fashion, and breached the principle of equal remuneration on the ground of race, in terms of Section 29 of the Employment Equality Acts, and contrary to Section 8 of those Acts.
4.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference raised.
4.3 At the hearing of this complaint, the respondent confirmed that the complainant was on a different rate of pay to the comparator. The respondent did not concede like work but suggested that in addition to undertaking different duties, there were reasons other than race to account for the difference in pay for the complainant and the comparator.
4.4 The respondent outlined that during 2011, the complainant took approximately 50 days sick leave, which continued despite medical advice that he was ready to return. The complainant’s general performance was very poor and he repeatedly breached the reporting policies and procedures in place to deal with sick leave absence. Despite being told to do so, the complainant repeatedly notified them of his sick leave absences too late in the day to arrange a replacement and by way of text (in contravention of a specific ban on such in its sick leave policy). This account of events was not disputed by the complainant.
4.5 The respondent outlined that there was not a similar situation in existence in relation to the comparator in that even though he had 30 days sick leave, the comparator complied with the reporting policies and procedures in place to deal with sick leave absence. In addition, the respondent stated that the comparator’s performance was without reproach consistently throughout the year and consistently during his employment. This, according to the respondent, accounts for why the comparator was paid a bonus and the complainant was not. In addition, during this period (2011) the complainant’s brother who is also Polish was paid his bonus and furthermore, over the past five years a small number of individuals of different nationalities, including Irish employees, did not receive a bonus for a variety of reasons. The respondent suggested that this further undermined the argument put forward that the bonus was withheld due to race.
4.6 Having regard to the difference in the rate of pay, the respondent stated that the comparator was recruited two years earlier than the complainant. Both were recruited on the same rate of pay and both were given a pay rise of €1000 within their first year of employment. The only difference as to how they were on different rates of pay is accounted for by the fact that the comparator received two pay increases during the additional two years he worked for the respondent.
4.7 In addition, the respondent stated that the complainant’s brother was paid more than he was although both started at the same time on the same rate of pay. This was accounted for by the fact that the complainant’s brother undertook duties of a higher responsibility and was accordingly given a pay rise of €3000 during his second year of employment.
4.8 Having considered the foregoing I am satisfied that the respondent has established that the grounds covering the payment of different remuneration to the comparator as opposed to the complainant are grounds other than race. Therefore, this element of the complaint must fail.
4.9 Having regard to the complainant’s claim of discriminatory treatment, at the hearing he outlined being disciplined for a breach of safety when an Irish employee who breached the same rules on a different occasion was not disciplined. The complainant was not able to adduce evidence to show that the respondent was aware of the alleged breach by the Irish employee, and he had never raised this account previously. In the circumstances, I am not satisfied that the complainant has established facts, in the first place, from which discrimination may be inferred. Therefore, this element of the complaint must fail.
5.1 Having considered all the written and oral evidence presented to me, I find that the complainant has not established a prima facie case of discriminatory treatment on the race ground and, therefore, this element of the complaint fails.
5.2 Having considered all the written and oral evidence presented to me, I find that the respondent has established that there are grounds other than race which account for the difference in pay between the complainant and the comparator. Therefore, the case for the breach of the principal of equal remuneration on the basis of the race ground has not been established. Accordingly this element of the complaint must fail.
12 November 2013