INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011
BRINKS SECURITY SERVICES IRELAND LTD
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
Chairman: Ms Jenkinson
Employer Member: Ms Cryan
Worker Member: Mr McCarthy
1. Appeal Of Adjudication Officer Decision No dec-e2015-127.
2. This is an appeal made pursuant to Section 83 of the Employment Equality Acts, 1998 to 2015. A Labour Court hearing took place on 12th April 2016 and 27th July 2016. The following is the Court's Determination:
This is an appeal by Mr Changiz Durrani against the decision of an
Adjudication Officer/Equality Officer under the Employment Equality Acts 1998 - 2011. The Adjudication Officer/Equality Officer held that the
Complainant had failed to establish aprima faciecase of discrimination in
relation to equal pay.
The Complainant submitted a claim under the Acts on 1st July 2013. He
claimed that he was discriminated by the Respondent on the grounds of his race/nationality when it failed to provide him with equal pay and conditions of employment. He also claimed that he was victimised by the Respondent for threatening legal action.
Clarification of the Claim(s) on Appeal before the Court
On 12thApril 2016, at the outset of the hearing of the appeal, the Court ascertained details of the claim(s) properly before it. The Complainant was unrepresented at the Court hearing, therefore with the approval of the Respondent’s representative, the Court provided assistance to the Complainant to clarify this matter. It was confirmed that a claim of victimisation was not before the Court as such a claim was not referred until the hearing before the Adjudication Officer/Equality Officer in June 2015, at which point that claim was out of time and was statute barred. This was accepted by the Complainant. The Adjudication Officer had referred to the claim of victimisation and held that it was not made on the complaint form to the Equality Tribunal and was only made in the submission to the Tribunal on 24th June 2015, some two years after his employment terminated, therefore the complaint was out of time in accordance with Section 77(5) of the Acts.
References were made in the Complainant’s submission to the Court regarding alleged discriminatory terms and conditions of employment (he claimed that he was provided with lesser hours of work than provided for in his contract of employment), however, no such claim had been referred to the Equality Tribunal in the claim he submitted on 1st July 2013. The Complainant then explained that he had separate proceedings pending on this matter before the Circuit Court. He also informed the Court that he had a claim of unfair dismissal pending before the Employment Appeals Tribunal.
The Complainant agreed that the only claim on appeal before this Court concerned a claim of alleged equal pay discrimination. The Court proceeded on that basis.
The Complainant, who is from Pakistan, was employed as a Security Guard in the Security Services Division of the Respondent Company, from 26th July 2011. He resigned on 19thJune 2013. The Company is currently in an orderly wind down situation.
Summary of the Complainant's Case
From the commencement of the Complainant’s employment with the Respondent in July 2011 he worked 40 hours per week for the first three months and was paid at a rate of €9.00 per hour. Thereafter he was employed for between 20 and 30 hour per week. He said that he discovered that another worker, who was Irish, who was employed after him, was paid a higher rate of pay, €10.01 per hour. He claimed that both he and his nominated Comparator were doing “like work” within the meaning of Section 7 of the Act.
The Complainant’s rate of pay increased to €10.0l per hour from 5th January 2012.
Summary of the Respondent's Position
The Respondent denied that the Complainant was subjected to discrimination, either directly or indirectly. It accepted that the Complainant and the nominated Comparator were doing “like work” within the meaning of Section 7 of the Act, however, there were numerous Irish and non-Irish nationals engaged on similar security guarding work, who were paid the same rate as the Complainant.
The Respondent stated that Static Security Guards are normally hired on permanent contracts with working hours of no less than 20 hours per week. Whereas Security Guards hired for events are hired on casual contracts where no express working hours are promised and with no obligation on the employee to accept work. The Complainant was employed on the latter contract. The Respondent stated that four other persons were hired on the same day as the Complainant on the same rate of pay - €9.00 per hour. These persons were all of Irish nationality. The named Comparator commenced employment on 28thOctober 2011. His rate of pay was €10.01 per hour. He was on a contract where he was guaranteed a minimum of 20 hours per week. On the day that the Comparator was hired seven other persons were also employed. Three different rates of pay were applied depending on their contract as follows:-
- €9.00 per hour: 4 persons, 2 Irish, 1 Pakistani, 1 Togolese
€10.01 per hour : 2 persons, 1 Irish, 1 Italian
€10.75 per hour : 2 persons, both Irish
Following a review of wage rates the Respondent decided to increase the minimum wage rate for security guards to €10.0l per hour from 5th January 2012. Accordingly, the Complainant's rate of pay increased at that time. At the time that the €9.00 per hour rate applied there were 44 employees on that rate of which 33 were Irish and 11 non-Irish.
In reliance on Section 29(5) of the Act, the Respondent stated that the Complainant was hired on an Event Security Sector type contract, which did not provide for the same terms and conditions in respect of pay and hours of work, whereas the Comparator was hired on a “JLC Compliant type contract”. Furthermore, the Respondent stated that in determining the matter in issue the Court must have regard to the following two matters:-
- i.On 7thJuly 2011 the High Court struck down the Security Industry JLC, with effect from that date the Employment Regulation Order setting out the rates of pay for security guards ceased to have statutory effect. Therefore there were some employees with pay rates in line with the old JLC and others who commenced after 7thJuly 2011 with different rates of pay.
- ii.In certain circumstances employees who transferred from one security company to another when commercial contracts exchanged, had their rates of pay protected by the provisions of S.I. No. 131/2003 - European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, thereby resulting in different rates of pay applying to different employees, working side by side.
This is a case involving equal pay as between persons of different race/nationality. The legal principles applicable are the same as those that apply in cases involving equal pay as between men and women. Consequently, the jurisprudence applicable to the latter is also applicable in this case. In order to succeed in his claim of discrimination the Complainant must establish, as a matter of probability, that the difference in pay is attributable to his race or nationality.
The facts of the case are that the Complainant and his Comparator are engaged in like work and there is a difference in pay between them. However, the Respondent contends that the difference in pay is unrelated to their difference of race/nationality. It stated that the distinction related to the different types of contracts they were on, where there are different working hours’ commitments depending on the whether a security guard is hired as a Static Security Guard or as an Events Security Guard. On that basis the Respondent contends that it has a defence under Section 29(5) of the Act.
The claim falls to be decided by reference to the provision of Section 29 of the Act. As the ground relied upon is that of race the provisions of Directive 2000/43/EC (the Race Directive) are also relevant.
Section 29(1) of the Act provides a general entitlement to equal pay as between persons who are differentiated on any of discriminatory grounds and who are engaged in like work. However, subsection (5) of Section 29 provides a general saver which allows for the payment of different remuneration to employees on grounds other than the discriminatory grounds. It provides as follows: -
- “nothing in this part shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employee”.
Article 2 of the Directive provides that there shall be no direct or indirect discrimination based on racial or ethnic origin. Article 3 (c) of the Directive provides that the prohibition of discrimination contained at Article 2 extends to employment and working conditions, including pay.
There is authority for the proposition that a mere difference in treatment and a difference in race is, in and of itself, insufficient to shift the probative burden to the RespondentMadarassy v Nomura International plc IRLR 256. However, is this case there is the added factor that the Complainant and his Comparator are engaged in like work. Consequently, the observation of Barron J inFlynn v Primark ELR 258 to the effect that where men and women are engaged in like work and are paid differently there isprima facieevidence of discrimination is apposite.
The right to equal pay as between people of different race/nationality is not absolute. Like the corresponding right as between men and women it is founded on the principle that people cannot be discriminated against by reason of a protected characteristic. Where there is a difference in treatment (or pay) based on a factor other than, in this case, race/nationality, there may be discrimination in the colloquial sense but is it unlawful. Equality legislation is intended to prohibit discrimination on the protected grounds and is not intended to promote fairness in employmentper se.
It follows that, in relation to direct discrimination, if the Complainant was paid less than his Irish comparator for genuine reasons unrelated to his race, whether or not the distinction was fair or unfair is not a matter for consideration under the Act.
All of the evidence adduced in the course of the appeal indicates that the process followed by the Respondent in determining the pay of the Complainant and that of the Comparator was somewhat opaque and arbitrary in its application. Therefore it was inherently vulnerable to conscious or subconscious discriminatory influences. That, combined with the outcome of the process (which resulted in an Irish national and a non-national receiving unequal pay for equal work) is sufficient to shift the probative burden to the Respondent. It is thus for the Respondent to prove on the normal civil standard that the principle of equal pay for work of equal value was not infringed in relation to the Complainant.
The Comparator as an Evidential Tool
The purpose of a comparator under the various statutes dealing with
discrimination is to demonstrate if a higher value is placed on the same or
similar work as that performed by the Complainant when it is performed by another employee having a different gender, characteristic, or status, as the case may be. A comparator is thus said to be an evidential tool.
However, the evidential value of a comparator is diminished where he or she is in an anomalous position or is unrepresentative of others in the same class or group. The decision of the CJEU in Case C-427/11,Kenny and Others v Minister for Justice Equality and Law Reform IRLR 463 makes it clear that groups are not relevant for comparison purposes in cases of indirect discrimination where they are formed in an arbitrary manner so as one group comprises those having the characteristic relied upon and the other does not. The Court pointed out: -
- In that regard, it must be noted that a comparison is not relevant where it involves groups formed in an arbitrary manner so that one comprises predominantly women and the other predominantly men with a view to carrying out successive comparisons and thereby bringing the pay of the group consisting predominantly of women to the level of that of another group also formed in an arbitrary manner so that it consists predominantly of men (see Case C-400/93Royal Copenhagen ECR I-1275, paragraph 36).
That is not to say that the Court can ignore a chosen comparator because he or she is anomalous. There is clear authority, for the proposition that an equal pay claim must be judged by reference to a chosen comparator. However, if an atypical or anomalous comparator is relied upon it is permissible for an employer to point to others in a similar position to the comparator whose contract conditions are the same as those of the complainant for the purpose of negating any implication of unlawful discrimination in reliance on the ‘grounds other than’ defence. That was the ratio of the decision of the Supreme Court inNational University of Ireland v Ahern ILRM 435.
McCracken J, in a Judgement concurred in by the other members of the Court, said this: -
- "Assuming the comparators were engaged in like work with the Respondents, it is clear in the present case that they were not in receipt of the same rates of remuneration. The question raised by s. 2 (3) involves totally different considerations from those which are relevant to a comparison of "like work ". The question at issue here is whether the differing rates of remuneration are based on the grounds of sex or whether there are other reasons for the differential. This involves a different approach to the position of the comparators, and in particular of the context in which they were employed. I accept the arguments on behalf of the Appellant that for this purpose the Labour Court ought to have looked at the position of the comparators, not only in isolation, but also in the context of the other persons in the same grade who had not been chosen as comparators, namely the remaining switchboard operators. "
In this case the Respondent contends that the difference in pay as between the Complainant and his Comparator was unrelated to race/nationality. The fact that others of Irish nationality were also employed on the same hourly rate as the Complainant appears to support the contention that the race/nationality of employees was not a relevant consideration in determining levels of pay. In advancing its defence the Respondent places reliance on different contractual models. It is said that the rate of pay was determined by the type of contract (an event security sector type or a JLC compliant type contract). The Respondent also referred to differences arising resulting from employees transferring to the Respondent by way of a transfer of undertakings. It is not disputed that the latter had no application to either the Complainant or the Comparator.
While the reason cited by the Respondent may be somewhat opaque and may not seem like a particularly good reason for a difference in pay, however, the Court has no reason to believe that it was not the actual reason. The dicta of O’Sullivan J inMulcahy v Waterford Leader Partnership 13 ELR 21 is relevant here. In that case, in relation to an explanation offered for a dismissal, which the Labour Court had accepted while noting its unfairness, the judge said: -
- “it is not erroneous either in law or in logic to say that because a person offers a bad reason this necessarily means that the bad reason is not the real one.... The fact that one may disagree with the conclusion or strongly disagree with it, is, in law, neither here nor there. It is the Labour Court and no one else which is charged under our law with carrying out this quasi-judicial function and it is only if their conclusion is so abhorrent to logic and common sense or involves an error of law that the High Court will interfere with it. Clearly the Court was within its jurisdiction to accept the written and oral assurances of the employer in preference to the written and oral assurances of the employee and I cannot accept that in so doing they are in breach of legal principle or have offended logic and common sense to the point where this Court should interfere”
The evidence in this case points toward the difference in remuneration in issue being on grounds other than race/nationality. The fact that the majority of those on the lower rate are of Irish nationality would appear to offset any implication of discrimination against those who are not Irish. In the absence of any evidence to the contrary, the Court must accept the Respondent’s contention that the rates applicable were, at the material time, determined by a confluence of factors unrelated to nationality.
The Court has also considered whether the reasons advanced for the difference in pay are objectively justified.
It is only in a case of indirect discrimination that the question of objective justification for a difference in treatment arises. Such a situation could only arise if the Respondent’s pay determination system resulted in significantly more people of the Complainant’s race or nationality being paid less than a group comprising significantly more people of a different race or nationality. At the time material to this case there were 44 employees paid at the rate of €9.00 per hour of which 33 were Irish and 11 were of a nationality other than Irish. This is sufficient to dispose of the suggestion that the pay determination system results in discrimination based on race/nationality.
Therefore the Court accepts that a difference in pay was unrelated to race/nationality, therefore, whatever that reason for the difference, the Court is satisfied that there was no unlawful discrimination as a matter of law.
For the reasons referred to herein the Court is satisfied that while the Complainant has made out aprima faciecase of discrimination, it has also found that the Respondent discharged the onus which it bore and held that there were grounds other than race/nationality for the difference in pay. Accordingly, while the Court varies the Decision of the Adjudication Officer/Equality Officer in the terms of this Determination the appeal must nonetheless be disallowed.
The Court so Determines.
Signed on behalf of the Labour Court
10th August 2016______________________
Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.