ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00054010

Parties:

Complaints:

Date of Adjudication Hearing:  05/02/2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, and/or Section 27 of the Organisation of Working Time Act 1997,and/or Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints. The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.

Background:

The Complainant submitted a complaint that she was not given a premium for Sunday working as provided for in the Organisation of Working Time Act 1997.  She further contends that the Respondent discriminated against her on the ground of race by its failure to provide her with a language premium.  

Summary of Complainant’s Case:

Background

The Complainant works as an Investigator and has been employed since 1st March 2021, for which she earns roughly €2,400 net per month. She is fluent in both Polish and English. A primary responsibility of her job involves using her native language, Polish, as well as English to resolve work tasks efficiently. Ms. Niewiadomska has worked a similar shift pattern since commencing in Amazon.

Employment Equality Act 1998

At Amazon, a “language bonus” policy is in place, offering an additional €150 in wages per month to certain employees. This bonus applies to workers performing comparable roles who speak a native language other than English. However, this bonus does not extend to individuals whose native language is Polish. A direct comparator for the purposes of this case is a Swedish colleague of Ms. Niewiadomska, Ms. N. who engages in like work to Ms. Niewiadomska and receives a language bonus. 

The internal grievance procedure at Amazon was pursued regarding this issue. The company’s findings concluded that there was no issue, citing a policy that excludes Polish as one of the languages eligible for the bonus. An appeal against this decision was made, but it was not upheld.  This situation appears to constitute a clear case of discrimination on grounds of race/ethnicity. Despite performing the same work as colleagues who utilize their native language in the workplace, only certain employees receive the language bonus, while others, including Ms. Niewiadomska, do not. The union is therefore asking the adjudicator to rule in favour of Ms. Niewiadomska. We are asking that she be paid compensation in line with the legislation, and to rule that Amazon must incorporate Polish into the list of languages that are eligible to the paid the language bonus.

Organisation of Working Time Act 1997

The Complainant worked a similar shift pattern since her commencement at Amazon. She did not work Sundays. The Complainant had her shift pattern changed in March 2024 to include working on a Sunday. This shift pattern would remain in place until July 2024. The Complainant was not paid any additional wages for working on a Sunday. This can be seen clearly in documents (submitted) which contains The Complainant’s payslips for the period January to August 2024 and further documents (submitted) which contains her employment compensation summaries. Despite working on a Sunday, the Complainant did not receive a premium. The company claimed to The Complainant that the premium is already included in her wages, however her monthly wage packet remained the same from before working on Sundays and continued to remain the same after working Sundays. It simply cannot be argued that the Sunday premium was included in her wages already, as they did not change to reflect this. This is in clear breach of the act, and the union is asking the Adjudicator to find in favour of the Complainant and award her compensation.

The Complainant gave evidence under affirmation.  She stated that she commenced her employment on 1 March 2021.  Her job was to check identity documents and papers for those who wished to sell on Amazon.  She uses Polish on a day to day basis.  She said that Amazon pays people for additional languages, and she referred to her Swedish colleague Ms N who does the exact same job and yet she receives the language bonus.  She also referred to Turkish and Italian colleagues who received the bonus.  When she raised the issue she was told “Polish people don’t get the bonus”.  She believes this is unfair and she cannot understand how some colleagues get the bonus and others do not get the bonus.  

Summary of Respondent’s Case:

The Complainant commenced employment with the Respondent on 1 March 2021 as a “Seller Onboarding Associate” on a Gross Annual Salary of €28,000. This was by way of contract of employment dated 19 February 2021. Two years following the commencement of employment with the Respondent, the Complainant’s role changed to “Investigation SP-PL” effective 18 April 2023. There were no changes to the Complainant’s salary on foot of this role change, however over the course of her employment she has received a number of pay increases, (details submitted quoting €33,800 at August 2024).

On 10 September 2024, the Complainant submitted two complaints to the WRC under the Organisation of Working Time Act 1997 (the “1997 Act”) under section 14 (Sunday Premium) and the Employment Equality Acts, 1998 – 2015 (the “1998 Act”) alleging that she is receiving unequal pay.

The cognisable period for both claims is from 11 March 2024 to 10 September 2024.

On a high level response, the Respondent submits the following with respect to the two claims (detailed more fully below):

• (i) In relation to the 1997 Act claim, the Complainant’s written contract of employment is unambiguous that any work on a Sunday is included in her basic salary (Clause 5.1 of the contract of employment). As expanded on below, the High Court has been clear that the burden is on an employee in such a claim to rebut such express provisions in a contract of employment before the burden shifts to an employer. The Complainant fails to do so and her claim must fail.
• (ii) In relation to the 1998 Act claim, the Respondent raises an important preliminary objection below that the Complainant’s comparator, a Swedish employee, has the same pay as the Complainant and therefore this cannot constitute a difference in treatment. Any Swedish speaking employees do not receive the Language Premium, identical to, for example, English speaking employees or Polish speaking employees. Further and without prejudice to the preliminary, the Complainant’s comparator pool is invalid, identifying one Swedish employee who receives a language premium – there are multiple other cohorts of employees from a variety of nationalities who do not receive the Language Premium. Finally, as will be detailed below, the Respondent operates a Language Premium policy based on the need to recruit employees with certain languages, and this is not a breach of the 1998 Act.
• (iii) Without prejudice to the above, if the Complainant maintains that her comparator is employed by an Associated Employer in a different jurisdiction, the Respondent submits that this comparator is invalid as it does not come within the legal definition of Associated Employer.

PRELIMINARY ISSUE

Incorrect Respondent named

The Complainant is employed by “Amazon Ireland Support Services Limited”. This is confirmed in her contract of employment and further confirmed on the Complainant’s payslips. 

Section 8 of the Employment Equality Act 1998-2021 refers to discrimination of an employee by an employer. “Employer” is defined in s.2 of the Employment Equality Act 1998-2021 as:

“subject to subsection (3), means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment”.

"Employee” is defined as: “"employee", subject to subsection (3), means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and, where the context admits, includes a member or former member of a regulatory body, but, so far as regards access to employment, does not include a person employed in another person’s home for the provision of personal services for persons residing in that home where the services affect the private or family life of those persons”.

The Complainant has initiated a statutory claim against “Amazon”. The Respondent herein cannot be held legally liable for this complaint in circumstances where the Complainant has named the incorrect entity on the Complaint Form. It is submitted that the complaint herein is not correctly before the Adjudication Officer. Further, the Complainant had at all times the benefit of advice from a union official upon the initiation of the Complaint Form.

The Labour Court dismissed a complaint where the Complainant initiated against an incorrect Respondent in the case of Metropolitan Film Productions Limited -v- Paul Hickey (FTD223; 15 November 2022). The Court found:

“There is no evidence before the Court to establish that the Complainant was ever in the employment of the Respondent… It follows that the incorrect Respondent has been impleaded in the within proceedings. It is not, therefore, necessary for the Court to determine the issue of whether or not the Complainant’s originating complainant was referred to the Workplace Relations Commission within the statutorily permitted timeframe for so doing. The appeal accordingly fails and the decision of the Adjudication Officer is varied for the reasons set out above”.

The Complainant has failed to apply to substitute the Respondent and it is now statute barred for the Complainant to make such an application.

The Complainant must prove that there is any link between any alleged difficulty encountered by her in identifying the correct Respondent and the delay in seeking to substitute the named respondent for the correct Respondent. The Respondent relies upon An Employee v An Employer (UD36/2011), where the EAT found that the correct employer was identifiable to the Complainant and his representatives and further the case of Julie O Brien and Alan Keating v Carton Fixings Ltd (ADJ-00029590).  Other case law was cited in support of the preliminary argument.

COMPLAINT UNDER THE ORGANISATION OF WORKING TIME ACT 1997

The following is an extract from the Respondent’s submission:

Without prejudice to the above preliminary objection, the Complainant has initiated a claim under section 14 of the 1997 Act.

Section 14 sets out statutory rights for employees in respect of Sunday working and provides:

(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(b) by otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d) by a combination of two or more of the means referred to in the preceding paragraphs.  Subsection (3) applies to an employee where the value or the minimum value of the compensation to be provided to him or her in respect of his or her being required to work on a Sunday is not specified by a collective agreement.

Burden of proof in section 14 cases

In Trinity Leisure Holdings Ltd v Kolesnik [2019] IEHC 654, the High Court (Mr Justice Binchy) considered the burden of proof in cases brought by employees under section 14 of the 1997 Act. The Court held that the burden is strictly on an employee in such cases. At Paragraph 32, the Court held with respect to the employee’s burden of proof:

“While a statement in a contract that the rate of pay takes account of the requirement to work on Sundays may not always be conclusive, if an employee wishes to assert that the rate of pay does not do so then in my opinion he or she must advance some credible evidence to rebut the express provision of the employment contract, or at least so as to shift the onus of proof in the matter to the employer, although he or she will still have to overcome the parole evidence rule. However, it may be possible to do so.”

Contractual reference to Sunday Premium is sufficient

Further, in that case, the Court considered that the employees’ contract of employment expressly provided that their rate of pay “includes Sunday Premium” and that this was sufficient in discharging the employer’s obligation under section 14 of the 1997 Act. At Paragraph 28, the High Court held:

“Section 14(1) of the Act of 1997 imposes an obligation on employers to pay a reasonable remuneration to employees in respect of Sunday work by reference to stated criteria set out in ss.14(1)(a)-(d), unless the requirement to work on Sundays is otherwise taken into account in the rate of pay of the employee”.

The Court continued:

“Here, in stating that the hourly rate of pay “includes your Sunday Premium” the contracts make it clear that the requirement to work on Sundays is included in the rate of pay of the respondents, or, in the words of the Act of 1997, is “taken into account in the rate of pay of the employee”, and in executing the contracts, the respondents accept that to be the case”.

The Court held that this provision in the contract of employment was a

“clear and unambiguous statement” that went to direct evidence in the case.”

1997 ACT CLAIM - APPLICATION TO THE COMPLAINANT

As per the High Court case law of Trinity Leisure Holdings, an Adjudication Officer “cannot ignore the express statement in the contracts of employment of the respondents that their hourly rate of pay includes their Sunday premium”

In this regard, the Complainant’s written contract of employment expressly provides that any work on a Sunday is included in her basic salary. At Clause 5.1 of the contract of employment provides: “Your premium payment for working on Sundays is included in your basic salary”.

Further, as per the Trinity Leisure Holdings, the burden of proof is strictly on the Complainant to “advance some credible evidence to rebut the express provision of the employment contract, or at least so as to shift the onus of proof in the matter to the employer, although he or she will still have to overcome the parole evidence rule”. The Complainant has advanced no evidence whatsoever to rebut the express provision of Clause 5.1 of her contract of employment and instead simply states on the WRC Complaint Form: “From March 2024 to July 2024, my shift pattern changed to require me to work every sunday (sic). I was not paid any additional wages for my Sunday work. This is a clear breach of the act, and I am requesting compensation in respect of this”.

This is wholly insufficient to rebut the provision in the Complainant’s contract of employment and the Respondent, as per the dicta in Trinity Leisure Holdings, “is under no obligation to go into evidence on the issue”. Until such time as the Complainant submits credible evidence, the Respondent reserves its right to adduce evidence in this regard, as is its right under the 1997 Act.

COMPLAINT UNDER THE EMPLOYMENT EQUALITY ACT

Burden of proof

Section 85A(i) of the 1998 Act provides:

Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove to the contrary.

Section 85A shifts the burden of proof to the Respondent but only when the Complainant has established a prima facie case that the difference in treatment alleged is due to race discrimination. In Valpeters v Melbury Developments Limited,  the Labour Court stated:

“Section 85A of the Act 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.”

Equal Pay

The Respondent refers to Section 19 of the 1998 Act and cites case law in relation to the argument that the Complainant’s comparator pool is invalid.  Relevant case law includes the leading case on equal pay claims and appropriate comparators Kenny & Ors v Minister for Justice, Equality and Law Reform, where the CJEU applied the principles in Enderby v Frenchay HA and summarised the position as follows:

“(i)t is for the national court to assess whether it may take into account…statistics (adduced in proceedings to demonstrate the existence of indirect discrimination), that is to say, whether they cover enough individuals, whether they illustrate purely fortuitous or short-term phenomena, and whether, in general, they appear to be significant.”

Associated Employer

“Associated employer" is defined as: "two employers shall be taken to be associated if one is a body corporate of which the other (whether directly or indirectly) has control or if both are bodies corporate of which a third person (whether directly or indirectly) has control".

Under EU law, the funding has to come from a "single source". In Lawrence v Regent Office Care Ltd (C-320/00) [2002] E.C.R. I-7325, the CJEU ruled that a cross-employer comparison could only be permitted where a difference in pay is attributable to a single source of funding:

“where the differences identified in the pay conditions of workers performing equal work or work of equal value cannot be attributed to a single source, there is no body which is responsible for the inequality and which could restore equal treatment. Such a situation does not come within the scope of article 141(1) EC. The work and the pay of those workers cannot therefore be compared on the basis of that provision."

Application to the Complainant

Preliminary objection: The Complainant’s comparator has the same pay as the Complainant.

In order for the Complainant to establish a prima facie case of discrimination in her equal pay claim, she must identify the indirect discrimination practice or system which results in the pay differential of her group of comparators. The Complainant fails to do so.

The height of the Complainant’s claim is an allegation that because she is Polish, she does not receive a “language bonus” unlike her comparator, who is a Swedish employee (hereinafter “Employee B”).

Employee B has the same pay as the Complainant. All Swedish speaking employees in the Respondent do not receive the Language Premium, identical to, for example, English speaking employees or Polish speaking employees.

The Complainant’s contractual entitlements

The Complainant’s renumeration and duties are set out clearly in the contract of employment, accepted by the Complainant on 19 February 2021, and addendum to that contract of employment signed on 24 April 2023.

The Language Premium Policy

The reason for the difference in pay is because the language premium is a payment offered to employees in the Respondent who speak a foreign language which is in demand. Its purpose is to attract talent with niche language skills where there is difficulty in sourcing those language skills in the local hiring market. In simple terms, seeking employees with Polish language skills in the local labour market is easier in comparison to other languages that are at scrutiny and therefore attracted by language premium incentives.

The Respondent’s Policy on Language Premium (submitted) was clearly explained to the Complainant when she invoked the Respondent’s Grievance Procedure in February 2024.

The Complainant went through the internal grievance procedure up to and including appeal which process ended on 4 September 2024.

Invalid comparator pool

It is clear from the case law that a comparator may not be based on an unrepresentative group. The comparator pool of one Swedish employee, Employee B, identified by the Complainant is not appropriate, representative and is invalid. There are 537 employees employed by the Respondent in Ireland who speak various (and often multiple) languages, and who are employed at varying rates of renumeration. This includes employees who speak German, Japanese, Mandarin, Dutch, Turkish, French, Italian, Spanish and Portuguese. The Complainant compares her role to Employee B and has yet omitted to compare herself to those employees in the Respondent who are Investigators and who do not receive the language premium (such as those employees who speak Chinese, German, French and/or Dutch) – other than Employee B who is Swedish.

The Complainant does not provide any information nor any basis on which she alleges that she has been treated less favourably than Employee B on the ground of race. The Complainant’s case goes no further than an assertion that she does like work as Employee B but earns less than them and that they are a different race to her. It is submitted that this is entirely insufficient to discharge the Complainant’s burden to establish a prima facie case that the pay differential between her and an appropriate comparator pool exists because of race discrimination and not some other reason.

The Complainant has failed to demonstrate that her comparator is working for an Associated Employer, with the same single source of funding, the burden being on her to make out her case.

Objective justification of the Language Premium

Without prejudice to the foregoing, any difference in treatment on the race ground is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

In this regard, the aim of the difference in pay is to source employees with required additional language skills in comparison to employees with local/ English language skills in the given labour market. The labour market is dependent on the jurisdiction, for example in Ireland or in a different jurisdiction, like Spain.

Conclusion

The Complainant has failed to adduce any evidence to rebut the express provisions in her contract of employment as regards Sunday Premium. Therefore, this case must be dismissed.

The Respondent submits that the Complainant has not proven a prima facie case of treatment contrary to the 1998 Act. The Complainant cannot establish a prima facie case of race discrimination. The Complainant’s comparator receives the same rate of pay as the Complainant and therefore there is no difference in treatment. The case must be dismissed at the outset.

Further and without prejudice, the Respondent asks the Adjudication Officer to determine that as regards the equal pay claim, the comparator pool is inappropriate. It is well established in case law, in particular in Kenny and Ahern, that a Complainant cannot simply elect comparators in isolation. The correct approach is to look at the entire cohort of employees – in this instance all other Investigators in the Respondent.

Finally and without prejudice, the Respondent can objectively justify any difference in pay based on the Premium Language Policy.

The H.R. Regional Partner gave sworn evidence.  She stated that Amazon Ireland Support Services Limited is a completely separate entity to Amazon Services Spain.  The terms and conditions of employment in Spain (where the Swedish employee is based) are governed by a Collective Bargaining Agreement (CBA).  In Spain, any employee who speaks a language other than Spanish receives the premium including Polish employees.  In Ireland the language premium is paid not on the basis of nationality or race but is based on language skills.  Polish is not on the list due to the labour market availability of Polish speakers.   However, for example a Polish employee could receive the premium for speaking German.  Examples given regarding nationalities and language skills attracting the premium include:

2 Romanians who speak Italian and German

1 Slovakian who speaks Italian

1 Albanian who speaks Italian

1 Greek who speaks French

1 Croatian who speaks German

10 Irish who speak Chinese

Two Managers who conducted the internal grievance and appeal hearings separately gave evidence on affirmation.  Both confirmed the manner in which the internal grievance procedure was conducted and how it was explained to the Complainant that the rationale for paying the premium is when the Company finds it hard to recruit employees for use of certain languages.   If the Labour Market changes in the future then this may change.  But the language premium is based on language skills not nationality.

Findings and Conclusions:

Preliminary point

It was argued that the incorrect Respondent was named, and that the Complainant is employed by “Amazon Ireland Support Services Limited”. This is confirmed in her contract of employment and further confirmed on the Complainant’s payslips. 

I note that at the top of the employment contract the following is stated:

EMPLOYER: Amazon Ireland Support Services Limited (“Amazon”).

The contract further contains the following:

The following main terms and conditions will apply to your employment with Amazon.

I note that The Labour Court in Travelodge Management Limited – v- Sylwia WachEDA1511 stated:

The decision of the High Court in County Louth VEC v Equality Tribunal [2009] IEHC 370 is a seminal case on the question of when proceedings before a statutory tribunal can be amended.  In that case McGovern J. set out the following principles of law:

“If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then, a fortiori, it should be permissible to amend a claim as set out in a form such as the originating document before a statutory tribunal, so long as the general nature of the complaint remains the same.”

The Labour Court also held in the Travelodge case, referring to the Rules of the Superior Courts which make provision for the amendment of proceedings initiated in the High Court where the parties are improperly named, that “it could cogently be argued that in keeping with the decision of County Louth VEC v Equality Tribunal, and by application of the principle of equivalence, the Court should not adopt a more stringent stance in relation to the substitution of parties that is available in the High Court pursuant to that rule.”

The Labour Court also found in Auto Depot Limited v Vasile Mateiu UDD 1954:

“Accordingly, the Court considers the erroneous inclusion of Auto Depot Tyres Limited on the WRC complaint form to be no more than a technical error.  The Court is fully satisfied that the employer’s name can simply be amended on the paperwork to reflect its correct legal title, that of Auto Depot Limited”. 

Having regard to the foregoing authorities, I am satisfied that it is permissible for statutory Tribunals, such as the WRC, to allow a party to amend or substitute the name of an Employer/Respondent in proceedings in certain circumstances and any such application must be considered on the merits of the individual case.  I have given consideration to the matter and find that the correct respondent party suffered no prejudice by this error.

In this instant case, given that the employer referred to itself as “Amazon” in the contractual documents, the Complainant relied on this, and the erroneous inclusion of Amazon on the WRC complaint form was no more than a technical error, I find it permissible for the Respondent name to be amended to Amazon Ireland Support Services Limited.

CA-00065897-001             Organisation of Working Time Act 1997

The complaint here is that when the Complainant’s shift pattern changed requiring her to work on Sundays, she received no Sunday premium.

Section 14 of the Act provides:

14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

In this instant case, I note that the Complainant’s written contract of employment states:

Your premium payment for working on Sundays is included in your basic salary.

In this instant case, the Complainant contends that she is entitled to an increase in wages or premium for a change to her work pattern which includes working on Sundays.  I cannot ignore the express statement in her contract that the premium payment for working on Sundays is included in her basic salary.  I have taken into consideration whether the Complainant is on minimum rate of pay and I find her salary is above that rate.  The express provision in the contract along with the rate of pay being higher than minimum wage leads to the conclusion that working on Sundays is taken into account in her rate of pay.  I find the complaint is not well founded.

CA-00065897-002             Employment Equality Act 1998

The complaint here is that the Complainant was discriminated against on the ground of race in her conditions of employment and remuneration.  The basis for her complaint is that others in the employment performing comparable roles who speak a native language other than English receive a language bonus. However, she contends, this bonus does not extend to individuals whose native language is Polish. A direct comparator for the purposes of this case put forward is a Swedish colleague of the Complainant (Ms. N.) who engages in like work to the Complainant and receives a language bonus. 

 The Employment Equality Act 1998 prohibits discrimination as between any two persons in employment on 9 grounds.

Section 6(1) of the Employment Equality Acts 1998 and 2011 provides:

For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, 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) (in this Act referred to as the ‘‘discriminatory grounds’’)

Section 6 (2) (h) of the Act outlines the ground of race or nationality as follows:

That they are of a different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”).

In this instant case, the Complainant contends that she was discriminated against under Section 6 (2)(h) on the ground of race in relation to her pay in that as a Polish national she does not receive the regular bonus paid to others in the employment who are not Polish.

The burden of proof

Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:

“(1) Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to her or her, it is for the Respondent to prove the contrary.”

Put simply, the onus in the first instance lies with the Complainant to establish the primary facts from which it may be inferred that discrimination has occurred.  If these facts are established substantiated by evidence, the burden of proof then shifts to the Respondent to prove that discrimination did not occur.

The extent of evidential burden has been established by the Labour Court in The Southern Health Board v Dr Teresa MitchellDEE 011 where the Court found that the Complainant must:

“establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a claimant must prove, on the balance of probabilities the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.             It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.

In Elephant Haulage Ltd v Garbacevsthe Labour Court stressed that facts based on credible evidence were necessary to prove a prima facie case of discrimination and that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”  The Court observed that the language of Section 85A admitted of no exceptions to the evidential rule laid down.

The formulation of the test by the Labour Court in The Southern Health Board v Dr Teresa MitchellDEE 011 was described by the Court in HSE North Eastern Area v SheridanEDA0820 involving a three step process of analysis:

First, the Complainant must prove the primary facts upon which he or she relies in alleging discrimination.

Second, the Court or Tribunal (or in this case, Adjudicator) must evaluate these facts and satisfy itself that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination.

Third, if the Complainant fails at stage 1 or 2, he or she cannot succeed.  However, if the Complainant succeeds at stages 1 and 2, the presumption of discrimination comes into play and the onus shifts to the Respondent to prove, on the balance of probabilities, that there is no discrimination.

In this instant case, the Complainant asserts that as a Polish employee she is discriminated against in comparison to other employees who receive a language bonus. 

I note the Respondent disputes the validity of the comparator cited on two grounds, one being that Ms N is employed in a different company which is not the subject of the same single source of funding and the other disputes the validity of the pool of comparators.   I find that if in the first instance, the Complainant fails to establish a prima facie case then these arguments regarding the comparator becomes moot.

I note that the Respondent’s Language Premium policy states:

This policy lays the foundation for a consistent approach in recognizing the additional skill needed to provide seller support across multiple channels fluently in languages other than their native tongue.(emphasis added)

In this instant case, the Complainant’s native tongue is Polish.

The Language Premium policy outlines that in the case of Ireland employees utilising the following languages attract bonus payments:

German, Japanese, Mandarin, Dutch, Turkish, French, Italian, Spanish and Portuguese.

I note the evidence given by the H.R. Regional Partner that a Polish speaker receives the premium for speaking German. So it is not the case that no Polish speakers receive the premium.

In Spain the following languages attract bonus payments:

German, Mandarin, Dutch, Turkish, Arabic, Hebrew, French, Italian, Polish and Russian.

In Poland, the following languages attract bonus payments:

Swedish, Dutch, Finnish, Danish, Norwegian and German.

The Complainant simply states that discrimination has occurred by virtue of the fact that Polish employees do not receive the language premium.  The Complainant, as a Polish speaker does not receive the language premium.  The Swedish employee would not receive the language premium if she could only use the Swedish language in her work.  It is a fact that employees who can use another language other than their native language entitles them to the language premium.  I find that the application of the language premium is not based on race or nationality.  The complaint is therefore not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00065897-001             Organisation of Working Time Act 1997

Section 27 of the Organisation of Working Time Act 1997 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions in that Act.

Based on the reasons outlined, I have decided that the complaint is not well founded.

CA-00065897-002             Employment Equality Act 1998

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Based on the reasons outlined, I have decided that the complaint is not well founded.

Dated:   2nd of April 2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: