The Equality Tribunal
Employment Equality Acts
Rimantas Juodris & Sarunas Juodris
(Represented by Richard Grogan & Associates)
- V -
Ruskim Seafoods Ltd.
(Represented byPeninsula Business Services (Ireland) Ltd.)
File references: EE/2011/720 & EE/2011/721
Date of issue: 25 September 2013
Keywords: Employment Equality Acts - Discriminatory Treatment - Equal Pay - Race - Prima Facie case
1.1 This dispute concerns a claim by the complainants that that they were subjected to discriminatory treatment by the respondent on the grounds of their race in terms of Section 6(2) of the Employment Equality Acts and contrary to Section 8 of those Acts. The complainants also claim that the principal of equal pay was breached in relation to a named comparator, contrary to Section 29 of the Acts.
1.2 The complainants referred claims of discrimination to the Director of the Equality Tribunal on 17 October 2011 respectively under the Employment Equality Acts. On 21 May 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 12 June 2013. Additional written information was received by the Equality Officer on 22 July 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 complainants submitted that they were employed by the respondent and are Lithuanian Nationals. They have nominated a Lithuanian comparator, Mr X, and it is on this basis that the equal pay complaints are being taken. The complainants submitted that they did not receive any contract in a language likely to be understood by them.
2.2 The complainants submitted that they must establish a prima facie case and cited the Labour Court case of Southern Health Board v Mitchell in support of this contention.
2.3 The complainants referred to the Equality Tribunal case 58 named Complainants v Goode Concrete Ltd. in relation to the non receipt of a contract of employment.
2.4 The complainants submitted that they are seeking compensation.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent submitted that the named comparator was paid the same rate as the second-named complainant and that rate was lower than the remuneration paid to the first-named complainant.
3.2 The respondent submitted that complainants received a contract along with all employees in or around April 2008.
3.3 The respondent submitted that the complainants regularly converse in English with their colleagues at work and that they have recently attended courses as part of driver training which were carried out through English. In addition, the respondent submitted that it always asks its non-national employees if they understand any written documentation handed to them. At no time did the complainant indicate to the respondent that they did not understand English or any written notice.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent subjected the complainants to discriminatory treatment, and whether the principal of equal remuneration has been breached on grounds of race, in terms of Section 6 and 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 may 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 of discrimination raised.
4.3 At the start of the oral hearing, the respondent stated that the complainants and the comparator were paid the same rate of pay. This was not refuted by the complainants. Accordingly, this element of the complaint must fail.
4.4 As regards the submission on behalf of the complainants that issuing contracts in English only amounts to discrimination per se, I am not satisfied that giving staff members whose mother tongue is not English contracts in English only can amount to discrimination in and of itself. Each case must be considered in light of the circumstances that pertain to the employment relationship in its entirety. Factors such as, but not limited to, the employee's knowledge of the language of the contract, the employees knowledge of the business and the work environment, the employer's knowledge of the employee's mother tongue, the availability of translation services - both formal and informal, the size of the company in relation to the numbers of language spoken, the line management structure within the company (in terms of language competence and nationality) and the common language used within the company, all contribute to consideration of what amounts to discrimination in the circumstances of the employment relationship.
4.5 In this case I am satisfied that the complainants had an adequate level of English to understand their contracts of employment which were provided to them and furthermore, if there was some area of uncertainty, I am satisfied that the respondent had the facility in place to explain any element of the contracts to the complainants. I am also satisfied that the complainants never raised the issue of not being able to understand documentation with the respondent. In the circumstances of this case and where no issue was ever raised with the respondent, I am not satisfied that the complainants have established facts from which discrimination may be inferred. Accordingly, no onus shifts onto the respondent to rebut and this element of the complaint must also fail.
4.6 When it became apparent at the hearing that the nominated comparator was in receipt of the same or a lesser rate of pay as the complainants, they submitted that they were discriminated against in that the comparator was working shorter hours than they were. Written documentation was submitted in relation to this aspect of the complaint including the decision of a Rights Commissioner. The documentation indicates that the complainants worked on average 50 hours per week and that that the comparator worked 48.5 hours per week. The complainants work in the Dublin region while the named comparator works in the Cork region. No evidence was presented to the Tribunal which would substantiate a claim that the 1.5 hours difference in hours worked arises from the complainant's race. Therefore, I consider that the complainants have not established facts from which discrimination may be inferred. Accordingly, the complainants have not established a prima facie case of discrimination and this complaint must fail.
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the race ground has not been established and this element of the complaint fails.
5.2 Having considered all the written and oral evidence presented to me, I find that a prima facie case for the breach of the principal of equal pay on the basis of the race ground has not been established and this element of the complaints case fails also.
25 September 2013