Decision No: DEC-E/2014/035
(Represented by Richard Grogan and Associates – Solicitors)
Barty O’Brien Ltd. (In Liquidation)
File No: EE/2012/493
Date of issue : 23 May, 2014
Headnotes: Employment Equality Acts 1998- 2011 – sections 6 and 8 – discriminatory treatment – conditions of employment – race – assertions – prima facie case
This dispute involves a claim by Ms. Irina Timofejeva, (“the complainant”) who is a Lithuanian national, that she was discriminated against by Barty O’Brien Ltd (“the respondent”) on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts in respect of her conditions of employment.
2.1 The complainant commenced employment with the respondent as a contract cleaner in February, 2011. She contends that during her period of employment she was treated less favourably as regards her conditions of employment on grounds of race (Lithuanian nationality) contrary to the Acts.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 - 2011 to the Equality Tribunal on 20 September, 2012. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 18 March, 2014 - the date it was delegated to me. The Tribunal was informed on 6 February, 2013 (by solicitors on behalf of the respondent) that the respondent had gone into liquidation and advised that all future correspondence in the matter should be addressed to the Liquidators – details supplied. The Liquidator was advised by letter dated 20 February, 2014, that a Hearing on the complaint would take place at the Earlsfort Centre, Lower Hatch Street, Dublin 2 on 9 April, 2014 commencing at 10:30am. This notification was sent by registered post. The Liquidator did not attend the Hearing or contact the Tribunal in the matter. I was satisfied that the Liquidator had received the written notification of the Hearing (on 24 February, 2014) and I proceed with the Hearing as scheduled in its absence.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant, who is a Lithuanian national, states that she commenced employment with the respondent as a contract cleaner (on a permanent full-time basis) on 7 February, 2011. She states that during her period of employment she did not receive a written contract or terms and conditions of employment and contends that this constitutes unlawful discrimination of her on grounds of race contrary to the Acts. In the course of the Hearing the complainant stated that during her employment the respondent employed around twenty other staff as cleaners. She added that these staff were Lithuanian, Latvian, Moldovan and Polish – although there were no Irish employees. She added that she did not know if any of these employees received contracts or terms and conditions of employment.
3.2 The complainant states that during 2011 she was assigned between thirty and forty hours work each week at a number of locations where the respondent held the cleaning contracts. She states that from January, 2012 her weekly hours decreased to around twenty. She adds that these reduced hours continued until she went on sick leave in August, 2012. In the course of the Hearing she stated that the reduction in hours affected all staff but later added that four staff retained full-time hours, two Latvians, one Lituanian and one Moldovan. She was unable to say why these employees retained full-time hours. It is submitted on her behalf that this alleged treatment amounts to discrimination of her on grounds of race contrary to the Acts. When asked (in the course of the Hearing), the complainant stated that she had never previously seen the three Memoranda from the respondent to staff dated 16 December, 2011, 23 December, 2011 and 26 January, 2012 or the unsigned Contract of Employment (in respect of a fixed-term/part-time role as a cleaner for the period 1 January, 2012- 31 December, 2012) which were furnished by her solicitor to the Tribunal as part of her submission on the complaint.
3.3 The complainant’s solicitor states that during the period of the complainant’s employment the rates of remuneration applicable in the cleaning sector were regulated by a Registered Employment Agreement (REA). Her solicitor adds this provides that Contract Cleaners are entitled to €9.50 per hour and she did not receive this hourly rate of remuneration. In the course of the Hearing the complainant was unable to say if any of the other employees received the REA rate. It is submitted that this amounts to discriminatory treatment of the complainant contrary to the Acts.
3.4 The complainant states that for the full period of her employment she was paid €7 per hour. She adds that whilst she received payslips indicated she was receiving the minimum wage, the details contained on the payslip were incorrect and were deliberately adjusted to reflect this false position. She adds that she was always paid in cash and was required to sign the payslip before she received her money. In the course of the Hearing the complainant stated that all staff were treated in this manner but was unable to say what hourly rate of pay they received. It is submitted on her behalf that a notional Irish comparator would not be treated in this manner or paid that hourly rate of pay and consequently she was treated less favourably on grounds of race.
4. SUMMARY OF RESPONDENT’S CASE
The respondent did not engage with the Tribunal at any level.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me are whether or not the respondent discriminated against the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts as regards her conditions of employment. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.
5.2 Section 6(1) of the Employment Equality Acts, 1998 – 2011 provides that discrimination shall be taken to occur where “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)…..”
Section 6(2) of the Acts defines the discriminatory ground of race as follows – “as between any two persons ….. that they are of different race, colour, nationality or ethnic or national origins… “
It follows therefore that the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because she is Lithuanian.
5.3 Section 85A of the Employment Equality Acts 1998- 2011 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required of him her case cannot succeed.
5.4 In Melbury Developments v Arthur Velpetters the Labour Court, whilst examining the circumstances in which the probative burden of proof operates held as follows -
"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."
5.5 That Court subsequently extended this analysis when it affirmed the approach adopted by this Tribunal in Businkas v Eupat Ltd  that one of the facts which a complainant must establish is that there was a difference in treatment between him/her and another person (see Glasgow City Council v Zafar  2 All ER 953) before the burden of proof shifts to the respondent. In the instant case the complainant is unable to say if any of the other employees engaged as contract cleaners by the respondent during her period of employment received contracts of employment (or written terms of employment). All that the complainant has proffered therefore is an assertion unsupported by any evidence - a scenario which the Labour Court found to be insufficient to satisfy the initial probative burden required in terms of section 85A of the Acts. In the circumstances I am not satisfied that the complainant has established as a fact that she was treated differently to other employees. Accordingly, she has failed to establish a prima facie case of discrimination in respect of this element of her complaint and she cannot therefore succeed. As this Tribunal has stated on many previous occasions there is no general obligation on an employer to provide an employee with a written contract of employment. There is however, a statutory requirement on employers to provide employees with a written statement of certain terms of their employment under the Terms of Employment (Information) Act, 1994. Enforcement of rights under this statute rests with the Rights Commissioner (at first instance) and not this Tribunal.
5.6 The complainant states that her weekly hours of work were reduced to around twenty hours per week in January, 2012 and that these reduced hours continued until the following August. I accept that her hours were cut. This situation is clear from the Memoranda furnished by her solicitor as part of her submission to the Tribunal. The complainant initially stated that the reduction in hours affected all cleaning staff (which numbered around twenty) in 2012 but later added that four staff continued to be assigned forty hours per week. She stated that these staff were Lithuanian, Latvian and Moldovan. I am satisfied that the remaining sixteen or so staff (who had their hours reduced) comprised, inter alia, employees from Lithuania, Latvia, Moldova and Poland. In light of the foregoing I am satisfied that the treatment of the complainant, however unfair it may seem to her, was not because she was Lithuanian. Consequently, this element of her complaint fails.
5.7 The complainant states that her employment was covered by a Registered Employment Agreement, the terms of which entitled her to an hourly rate of pay of €9.50. I have examined the REA and this is the case. I found the complainant to be a truthful witness who gave her evidence in a forthright manner. Consequently, I accept her evidence that she never received this rate of pay during her employment. The complainant was unable to say if any of the other staff employed as contract cleaners during this period received the REA hourly rate of pay. Accordingly, all that the complainant has proffered as regards this aspect of her complaint is another assertion unsupported by any evidence. As stated previously this is insufficient to satisfy the initial probative burden required of her and this element of her complaint consequently fails. Moreover, the REA provides for a process should disputes arise between the parties as to the operation of the Agreement and this Tribunal has no jurisdiction in the matter.
5.8 The complainant alleges that during her entire period of employment she was only paid €7 per hour. She adds that her payslips were falsified by the respondent to reflect that she was receiving €8.65 per hour - the national minimum wage. She adds that she was paid by cash and had to sign her payslip before being paid. As I stated previously I found the complainant a truthful and credible witness and I accept her evidence in these matters. She further states that all her colleagues were treated in a similar fashion - as regards the mechanism for payment of their wages – but was unable to say what hourly rate of pay they received. It is submitted on her behalf that the respondent would not have treated a hypothetical Irish comparator in this way and that is the test which the Tribunal should apply. In Toker Developments v Edgars Grods the Labour Court stated it "is settled law that in cases of equal treatment a hypothetical comparator can be relied upon but only where there is some evidential basis upon which it could be concluded that such a comparator would have been treated more favourably in the circumstances of a particular case. ... It would clearly be impermissible for the Court to reach conclusions of fact based upon mere supposition or speculation.". In addition the Court in Businkas v Eupat Ltd  endorsed the approach adopted by this Tribunal as regards the use of hypothetical comparator as follows " I have no hesitation in using a hypothetical comparator in appropriate situations such as where it is shown that the existing potential comparators are unsuitable for one reason or another...other employees working for the respondent on the same site were of a different nationality and no reason has been adduced by the complainant as to why they were not suitable as comparators.".
5.9 In the instant case I am satisfied, on balance, that the respondent adjusted, many, if not all, of the other (twenty or so) employees’ payslips so as to reflect an hourly rate of €8.65 for them also in circumstances where it was not paying then that hourly rate of remuneration. The complainant has failed to adduce any evidence as to why these other employees are not suitable comparators. She has also failed to adduce any evidence to satisfy me that the respondent would have treated an Irish employee differently in the circumstances. The matter in issue here is the failure (by the respondent) to comply with the statutory minimum wage standards. That statute provides a mechanism for enforcement of those entitlements and this Tribunal has no jurisdiction in the matter. In light of my comments in this and the preceding paragraph, I find that the complainant has failed to establish a prima facie case of discrimination as regards this element of her complaint and it cannot therefore succeed.
6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find that the complainant
has failed to establish a prima facie case of discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts in respect of her conditions of employment and her complaint fails in its entirety.
23 May, 2014
 EDA 0917
 Arturas Businkas v Eupat Ltd (In Liquidation) EDA103
 Melbury Developments v Arturs Valpetters EDA 0917