THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC – E2015 – 075
Mr Vladimir Savel
Workforce International Contractors Ltd. (represented by Frank Beatty B.L., instructed by McDowell Purcell Solicitors)
File Reference: EE/2012/505
Date of Issue: 18th August, 2015
Keywords: Equal pay –direct discrimination – S. 29 – proper comparator – “comparable circumstances” pursuant to S. 29(3) of the Acts – National University of Ireland Cork v. Ahern and ors, SC  IESC 40 – misconceived – indirect discrimination in pay – no prima faciecase.
1.1. The case concerns a claim by Mr Vladimir Savel that Workforce International Contractors Ltd discriminated against him on the ground of race contrary to Section 6(2)(h) of the Employment Equality Acts 1998 to 2011, in terms of his right to equal remuneration.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 26 September 2012. A submission was received from the complainant on 21 November 2012. A submission was received from the respondent on 1 February 2013. On 28 January 2015, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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 this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 6 May 2015. The last piece of correspondence relating to the complaint was received on 15 July 2015.
2. Summary of the Complainant’s Written Submission
2.1. The complainant submits that a named colleague, who is Hungarian and who is based in Weeze, is receiving more pay than him for the same work. The complainant is based in Budapest. Both are employed by the respondent and work as aircraft cabin crew.
2.2. The complainant further submits that provisions in various pieces of EU legislation which express the goal of achieving comparable living standards across the EU, ought to be read as mandating employers to pay their staff the same wage for like work regardless of location.
3. Summary of the Respondent’s Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all. It submits that the pay rates offered reflect the local costs of living. It further states that it employs two Slovak nationals at the same German base as the complainant’s Hungarian comparator and workers of four different nationalities at Budapest, who are all treated equally. It submits that the complainant has not established a prima facie case of discrimination in remuneration on the basis of race.
4. Conclusions of the Equality Officer
4.1. The issue for decision in this case is whether the complaint as presented is validly before the Tribunal and can be comprehended within the provisions of the Employment Equality Acts, and if so, whether the complainant was discriminated against in terms of his right for the equal remuneration within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.
4.3. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
4.4. The complainant maintained consistently that the fact that the respondent’s employees on cabin crew contracts, who were based in Budapest, were paid less than its employees in places like Weeze on the Dutch-German border, or in Charleroi in Belgium, was discriminatory. He expressed the opinion that the lower pay was related to the fact that both the location and the staff were Eastern European. He also cited a remark made to him by an unnamed respondent staff member, that life was much cheaper in Budapest than in locations in Western Europe. He also stated that when he applied for a transfer to Budapest, he was warned that the pay would be less than what he had earned before.
4.5. When presented with a list of respondent staff who also worked from Budapest, the complainant confirmed that these were his colleagues, but stated that there were also some other staff, who were brought in on a short-term basis for a few weeks, who earned more than he and his colleagues.
4.6. The respondent stated that the complainant’s comparator was not a valid comparator, since there were several Hungarian nationals at the Budapest base who would have been suitable comparators for a complaint on the basis of race. The complainant confirmed that the people in question were employed alongside him in Budapest. He also spoke of general dissatisfaction among the staff there about the pay rate.
4.7. The Irish Supreme Court, in National University of Ireland Cork v. Alan Ahern and others  IESC 40, has established the important principle that in complaints of equal remuneration, complainants are not entitled to choose a comparator which is most favourable to their case when other comparators are available who are more representative of the situation complained of. In the instant case, I take that to mean that if the complainant wished to complain of being paid less than someone of Hungarian nationality, there would have been several regular respondent employees in Budapest, who were cabin crew like the complainant, and Hungarian nationals, which he could have chosen as his comparators.
4.8. I therefore accede to the respondent’s argument that the complainant’s comparator is not valid. Furthermore, it was not even clear during the hearing of the complaint, what exactly the complainant was arguing. He himself stated that he felt it was more of a scenario of indirect discrimination on the ground of race, in that staff in the Budapest location was paid considerably less than staff elsewhere, and that the Budapest staff were mostly Eastern Europeans. Despite having this explained to him several times, and despite being given a very express opportunity to do so, the complainant did not confirm in oral evidence that his complaint was one of individual discrimination in respect of remuneration, on the ground of race, yet this is what all of his submissions were based on.
4.9. With regard to a possible case of indirect discrimination, however, it became clear from the complainant’s own evidence that Eastern European nationals also worked in Western European locations and in the UK. The complainant had done this himself, having applied to transfer to Budapest despite warnings that the pay would be less, again according to his own evidence. Based on the complainant’s evidence that people of any nationality could apply to work anywhere and be paid according to whatever rate was paid in that location, I cannot accept that this practice of paying remuneration in line with local costs of living is in any way linked to staff of a particular nationality being to a particular disadvantage within the meaning of the Acts. I am therefore satisfied that the complainant’s evidence in this matter does not amount to a prima facie case of indirect discrimination in terms of remuneration on the ground of race within the meaning of the Acts.
4.10. Last, it seems appropriate to briefly address the point of whether it is unfair or discriminatory in general, to pay staff in different countries according to local cost of living. To do so is a long-established principle of both public and private employers. The first thing to note is that such a practice is not connected to any of the protected grounds, as it is everyone in a particular location, regardless of the presence or absence of any protected characteristic, who is paid these rates. I also cannot accept the complainant’s argument that social policy aims enshrined in EU legislation can be literally binding on employers. If any public or private employer paid all staff in all locations the same rates despite wide varieties in the cost of living, i.e. when the purchasing power of wages or salaries were much bigger in one place than another, this would in itself give rise to some very unfair situations and cause possible problems in staffing certain locations. On the other hand, whether a particular salary range in a particular location is indeed in line with local cost of living, is essentially an industrial relations matter.
5. The Law
5.1. A claim is misconceived when it is incorrectly based in law. In Keane v. Minister for Justice [1994 3IR 347], Lynch J found that the Minister had no statutory power to relieve Leitrim County Council of its duty to provide courthouse accommodation in Carrick-on-Shannon and that her direction to the council was therefore “wholly misconceived and invalid”. In my view, the complainant’s complaint of direct discrimination on the ground of race, against his named Hungarian comparator who is based in Germany, is similarly misconceived because this comparator is not a valid comparator pursuant to the Supreme Court findings in National University of Ireland Cork v. Alan Ahern and others  IESC 40.
5.2. The complainant’s alternative complaint of indirect discrimination in terms of pay cannot succeed because he has not been able to establish a prima facie case to support such a complaint.
6.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that due to the complainant’s choice of an invalid comparator, and a general lack of compatibility in circumstance as referenced in S. 29(3) of the Acts, that the complaint of direct discrimination with regard to equal remuneration on the ground of race is misconceived in law and that the Tribunal has no jurisdiction to investigate it.
6.2. The respondent did not discriminate the complainant indirectly in his remuneration either.
18 August 2015