The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2014-003
(Represented by Patrick M Martin Solicitors)
Drew International Limited (in receivership)
(Receiver Martin V Ferris represented by Gartlan Furey Solicitors)
File reference: EE/2011/434
Date of issue: 29 January 2014
HEADNOTES: Employment Equality Acts, Sections 6 and 8 – Race – Promotion - Conditions of Employment - Equal Pay.
1.1 This dispute concerns a claim by Mr Xin Wei that he was discriminated against by Drew International Limited on the grounds of race contrary to section 6 (2) of the Employment Equality Acts in relation to promotion and conditions of employment in terms of section 8 of the Acts and and that he performs “like work”, in terms of section 7 of the Employment Equality Acts with a named comparator and is entitled to equal remuneration in accordance with section 29 of the Acts.
1.2 The complainants referred his claim to the Director of the Equality Tribunal on 11 May 2011 under the Employment Equality Acts. On 10 September 2013, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, 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. The respondent went into receivership on 19 March 2009. This claim was made before the public house where the complainant worked was sold. Written submissions were received from the complainant and the Receiver. In accordance with Section 79 (1) of the Acts and as part of my investigation I proceeded to a hearing on 6 November 2013.
2. COMPLAINANTS' SUBMISSION
2.1 The complainant is Chinese and on 28 April 2002 he started working as a Waiter/Bartender for the respondent in the Bailey Bar.
2.2 He submits that in recognition of his abilities he was given extra responsibilities and became a de facto Assistant Manager. He was expected to perform the duties of an Assistant Manager although these extra duties were not in his official job description and he was not paid accordingly.
2.3 The complainant submits that in 2007 his named comparator, Mr A, who was Irish was recruited. He was trained by the complainant as he had less experience. In late 2010 the complainant discovered that Mr A was being paid between €13 and €14 per hour. The complainant was being paid €10 per hour and had no pay rise from 2007 until September 2011.
2.4 The complainant submits that he was paid less than Irish workers who were performing similar tasks with similar responsibilities, and specifically the named comparator. The complainant states he made frequent complaints to the Bar Manager (Mr B) but he was given no reasonable or logical explanation for the difference in pay.
3. RESPONDENT'S SUBMISSION
3.1 The receiver states that the respondent (Drew International Limited) was placed in receivership on 19 March 2009 and remained in receivership until 1 July 2011 when the Bailey public house was sold.
3.2 The receiver submits that the complainant started working for the respondent on 28 April 2002 as a waiter/bartender. The complainant was given responsibility for the ‘cash up’ on two nights per week because he was a trusted member of staff. However, he could not be deemed to be a ‘de facto Assistant Manager’, as he did not perform any duties that were commensurate with the role of an Assistant Manager.
3.3 The receiver submits that the named comparator started work for the respondent in February 2009, one month before they went into receivership, and not 2007 as stated by the complainant. He was solely a bartender and received no tips. It is also submitted that he was not trained by the complainant. The complainant did provide him with information which allowed him to be familiarised with procedures adhered to in the operation of the Bailey Bar. It is denied that the named comparator was paid €13 - €14 per hour.
3.4 Due to the insolvency of the respondent in receivership all wages were frozen at the date of the appointment of the Receiver.
3.5 It is denied that the respondent (in receivership) discriminated against the complainant on the grounds of race.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I have to decide if the complainant was discriminated against in relation to promotion and conditions of employment and if he is entitled to equal remuneration to a named comparator on the grounds of race. In reaching my decision I have taken into account all submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
4.2 The complainant says that from late 2007 he undertook extra responsibilities which he contends put him in a position of Assistant Manager, but despite his requests he received no extra remuneration for undertaking these tasks. The extra tasks were: key holder, opening and locking up (2-3 days per week), responsible for the cash, adding it up and putting it in the safe (2-3 days per week), dealing with customer complaints, organising 6/7 staff in 4 sections, working in the bar and kitchen. The General Manager (Mr B) carried out these duties when the complainant was not on duty. He confirmed he was paid €10 per hour and received tips of €15 to €20 per shift.
4.3 The named comparator was paid €12 per hour and received the same tips as the complainant. However, the complainant contends he worked solely as a bar tender and undertook none of the extra responsibilities that he did. The complainant submitted an email from the comparator confirming his pay and the management responsibilities of the complainant. The respondent contested the validity of this evidence as the comparator was not available to give evidence at the hearing.
4.4 Evidence on behalf of the respondent was given by two members of the company which ran the Bailey Pub during its’ receivership. Neither of them worked in the pub but liaised with the staff on a day-to-day basis and visited regularly. They confirmed that the complainant was a waiter/bartender and had responsibility as a key holder and for cashing up 2-3 days per week.
4.5 The respondent contends that the comparator was recruited just before the bar went into receivership in an effort to increase bar trade by engaging with customers and being responsible for the music and television in the bar. He was paid €12 per hour. They contend that any difference in pay between the comparator and the complainant had nothing to do with race and the two were doing different jobs.
4.6 It is clear that there was a difference in pay of €2 per hour between the complainant and comparator. Also the respondent was unable to dispute the complainant’s evidence that he and the comparator received the same money in tips and I therefore accept the complainant’s evidence. It is clear that during the period from when the comparator was recruited, February 2009, until the Bailey was sold on 1 July 2011 both the complainant and the comparator worked as bartenders. The only differences in their duties that could be identified were the extra responsibilities carried out by the complainant.
4.7 The claim in relation to promotion is essentially that he should have been promoted to the position of Assistant Manager because of the extra duties he undertook. The respondent contends there was not an Assistant Manager position available. They accept he undertook cashing up and locking when the Bar Manager was not on duty.
4.8 Section 8 (8) of the Employment Equality Acts states:
“Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds—
(a) the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or
(b) the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.”
In taking all the available evidence into account I conclude that there was not a promotional vacancy available. Furthermore I can find no evidence to substantiate a claim of discrimination in relation to conditions of employment.
4.9 Section 29 (5) of the Employment Equality Acts, states “nothing in this Part shall prevent an employer from paying, on grounds other discriminatory grounds, different rates of remuneration to different employees” and the respondent contends the reason for the difference in pay was because of the difference in duties of the complainant and comparator. The comparator was not available to give evidence but the witnesses provided by the respondent gave evidence that he was a bartender employed to increase trade at a time of poor business. However, I have to accept the evidence provided by both sides and not disputed that the complainant was a waiter/bartender who started work a number of years before the comparator, so he had considerable experience and was clearly trusted by the respondent to undertaking some extra duties. The respondent provided no evidence of the nature of the duties of the comparator that raised his work above that of the complainant nor that he had previous relevant experience.. I therefore do not accept their argument that there were reasons other than race for the difference in pay.
4.10 Having considered all the evidence provided I am satisfied that the complainant and the comparator carried out work of a similar nature in accordance with Section 7 (1) (b) of the Employment Equality Acts which states: “the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole,” and I conclude that they performed like work and there were no reasons other than race for any difference in pay.
5. DECISION OF THE EQUALITY OFFICER.
I have concluded my investigation of this complaint and hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts that:
- the respondent (Drew International Limited) did not discriminate against the complainant in relation to promotion and conditions of employment, and
- the complainant does perform ‘like work’ with the named comparator in terms of Section 7 (1) (b) of the Acts and I find that there are no objective grounds other than race for the difference in pay in accordance with section 29(5) of the Act and that the complainant has been discriminated against by the respondent Drew International Limited).
I hereby order that the respondent (Drew International Limited) pay to the complainant arrears of pay of €2 per hour for twenty hours per week from February 2009 until 1 July 2011; €4,960, in accordance with section 82(1)(a) of the Acts.
29 January 2014