Complainant

Respondent

Parties

Raymond  Nevin

Cpf (Profiles) Ltd. Cpf (Profiles) Ltd.

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00066270-001

25/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00066270-002

25/09/2024

The Complainant is a member of the Traveller community and this was not in dispute. His case was that he was discriminated against at interview and in his employment as a result of his membership of the traveller community. This was disputed and denied by the Respondent.

The Complainant also complained about his hourly rate of pay.

CA-00066270-001  -  Employment Equality Act [1998-2022]

The Complainant stated that he lived in Longford with his family which is where the Respondent’s business is also located. The Complainant stated that he had obtained a Level 8 degree and had hoped to stay living in Longford with his family and buy a car.

The Complainant stated that he attended an interview with the Respondent on 28 May 2024 and was employed with effect from 30 May 2024 as part of the sales team. The Complainant stated that he felt he was discriminated against in the course of the interview and throughout his employment with the Respondent. In that regard, the Complainant outlined the following:

·         The Complainant stated that he did not include a home address on his CV. He stated that at the interview he was asked by the Respondent’s Managing Director (MD) “where are you from” to which he replied Longford town. The Complainant stated that he was then asked “where abouts” to which the Complainant replied Park Road. The Complainant stated the Respondent wrote this down. The Complainant stated that the Respondent recited his name and asked “What Nevin are you from the town, taxi Nevin?”. The Complainant stated that he did not answer this question but that the MD chuckled and asked “I know there are a lot of them around here so are you related to the Taxi Nevins”. The Complainant replied no to this question and he was then asked who his father was to which he answered Thomas. The Complainant submitted that the enquiries about his name and family background was for the purpose of distinguishing whether or not he was a traveller as, according to the Complainant,  the “Taxi Nevins” were not members of the traveller community;

·         The Complainant stated that on the 4th June 2024 the MD was on a phone call and was talking about how there were a lot of Gardaí on the main street in Longford outside the Courthouse. The Complainant stated that he heard the MD saying in a joking way to the person on the phone and in front of other staff members that “the pikeys must’ve been acting up” which he submitted was a derogatory term for travellers;

·         On the 6th June 2024 the Complainant stated that he overheard the MD saying on the phone to a third party “you will have to go to the tinkers for lead” which he submitted was another derogatory term for travellers;

·         On the 12th June 2024 the Complainant stated there was a traveller customer on the premises enquiring about something and that he heard the MD making a comment and laughing “that he was making sure that the man put the item back that he was looking at”. On the same day the Complainant stated that he heard the word “itinerant” being used.

The Complainant stated that in addition some other employees queried whether he was related “to certain people with the surname Nevin”. He stated that he was called by his second name by people he had never met before.

The Complainant was cross examined on his evidence. In response to various questions he clarified that he conveyed his resignation by text to the Respondent and that he did not say he was a member of the traveller community when resigning. The Respondent put it to the Complainant that after he received the text, he telephoned the Complainant and asked him to come back to work and asked why he was not coming back but that the Complainant just asked for his wages to be sent. The Complainant stated this phone call “never happened” and that after his text he received emails regarding payslips. In response the MD stated that he was “99% certain he would have rang him….would do in all cases”.

The Respondent questioned the Complainant as to why he voiced no objections at work in relation to the use of any alleged derogatory comments. In that regard the Respondent stated that any such complaints would have been taken on board. In response the Complainant stated that he preferred to keep his identity to himself and that there was a “fear factor” of losing his job.

It is the position of the Complainant that he was subjected to discriminatory questions in the course of his interview on 28/5/2024 and was exposed to the use of derogatory descriptions for members of the traveller community in the workplace. Whilst the Complainant accepted that such derogatory descriptions were not targeted at him personally or directly, he stated that the language used impacted on him and caused him to feel “disheartened”. The Complainant submitted this constituted unfair treatment of him as a member of the traveller community and that that the feeling of being discriminated against by his employer was “horrendous and unbearable”. The Complainant further stated that the enquiries about his family background had no relation to the proposed job role and no relevance to his ability to perform the job. The Complainant stated that he resigned from the Respondent with effect from 18 June 2024 and has since emigrated. He also stated that he found a new job in July 2024.

CA-00066270-002   - National Minimum Wage Act [2000-2020]

The Complainant stated that his payslips showed that he was paid a gross salary of €80/day or €400/ week. He stated that he worked from 8:30am to 5pm on Monday to Thursday and from 8:30am to 3:30pm on Fridays. The Complainant stated that he was working 41 hours per week with a one hour break each day and that he was only being paid €9.76 per hour which was less than the minimum wage. The Complainant linked what he termed his unfair pay to the questions asked of him at interview. The Complainant furnished payslips in support of his position. Under questioning by the Adjudication Officer, the Complainant stated that he had not requested a statement of pay for any pay reference period.

CA-00066270-001  -  Employment Equality Act [1998-2022]

The Respondent outlined the background. The Respondent did not provide a written submission but the Respondent’s Managing Director responded fully to each of the matters raised by the Complainant. Whilst the MD disputed and denied discrimination he stated that “most of what” the Complainant stated “is correct”. In that regard, the MD stated:

·         That at the interview he did not know the Complainant was a member of the traveller community and that this “made no difference to him”.  The MD accepted he asked the Complainant who his parents were as - he stated - generally in a small town an employer needed to know the background of any prospective employee “to know if they are good or bad workers”. The MD stated that he would ask any potential employee the same questions about their background. The MD disputed the question about the “Taxi Nevins” and rejected the complaint that his questioning the Complainant’s background was for the purpose of ascertaining whether or not he was a member of the traveller community. The MD stated that at the interview he did not assume the Complainant was a member of the traveller community. At the adjudication hearing the MD/Respondent stated that there were alot of Nevins in the area. The MD stated that he “found nothing wrong” with the Complainant at interview, that he considered the Complainant was keen to get on and he offered him the job;

·         In relation to the phone call of the 4th June 2024, the MD stated that whilst he could not recall this telephone call he  “may” have said the word “pikey”, that this was “probable” and he was not denying this;

·         In relation to the alleged use of the word “tinkers” on the 6th June 2024, the MD stated that he had no recollection of this and would not have used such a word with one of his regular customers who was a member of the traveller community;

·         In relation to the Complainant’s allegation of the 12th June 2024, the MD stated he had no recollection at all of making such a comment and that “if” it was said “it was a joke”. The MD statedthat the Respondent’s business had a lot of customers of varying backgrounds and that he would never insult a customer. Separately in relation to the word “itinerant” the MD stated that it was “quite possible the word….could have been used in a joking fashion….not insult….”;

The Respondent/MD submitted that he operated a standard Grievance Policy in the workplace and that he had previously employed members of the traveller community. The MD stated there was never a previous complaint. The Respondent stated that new employees were furnished with a standard employee manual. In the course of questioning, the Complainant disagreed with this and stated that he did not receive either a contract of employment or any employee manual and never signed for such. In response the Respondent/MD stated that the Complainant may not have received the standard employee manual as he was only taken on for a trial period.

In response to further questions, the Respondent/MD stated that he could not recall when he discovered the Complainant was a member of the traveller community but that he certainly became aware after the Complainant resigned. In relation to the alleged use of derogatory comments, the MD stated that “we live in a society where these terms are used” and he accepted he himself had used such terminology. The MD answered  that “it shouldn’t happen but it did”.

It is the position of the Respondent that it did not discriminate against the Complainant, that the same questions were asked of all interview candidates and that whilst some of the interview questions may not have had “anything to do with the job”, they did not constitute discrimination. The Respondent stated that he considered the Complainant a good employee.  

CA-00066270-002   - National Minimum Wage Act [2000-2020]

The Respondent stated that the Complainant was paid €400/week for the first month which amount was not based on an hourly pay rate. The Respondent stated that if it was happy at the end of the month the Complainant’s pay would have been increased to €600/week. The Complainant disagreed with this and stated that he was told his salary would increase to €500/week after the trial period. The Respondent stated that the Complainant’s pay was on the same basis as all other employees and that the Complainant had provided no evidence to the contrary. The Respondent rejected the Complainant’s contention that his pay was in any way linked to his interview.

CA-00066270-001  -  Employment Equality Act [1998-2022]

Section 6 of the Employment Equality Act [1998-2022] provides:

6.—(1) 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) 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") which—

(i)                  exists,

(ii)                existed but no longer exists,

(iii)               may exist in the future, or

(iv)               is imputed to the person concerned…….”

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different civil status (in this Act referred to as “the civil status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

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

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”).

Section 8 of the Employment Equality Act [1998-2022] provides as follows in relation to discrimination by employers:

8.—(1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

(2) ……..

(3) …….

(4) A person who is an employer shall not, in relation to employees or employment—

(a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or

(b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination.

(5) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—

(a)    in any arrangements the employer makes for the purpose of deciding to whom employment should be offered,

(b)    by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different, or

(c)     by publishing or displaying, or causing to be published or displayed, an advertisement which contravenes section 10(1) in so far as such advertisement relates to access to employment.”

Section 85A of the Employment Equality Act [1998-2022] provides that a complainant must set out a prima facie case of discrimination – ie he/she must establish facts from which discrimination may be inferred. Where a complainant discharges this burden, the onus is then shifted to the Respondent to prove to the contrary. In Southern Health Board v Mitchell [DEE011 [2001] ELR 201], the Labour Court held that the first requirement is that the Complainant must establish on the balance of probabilities, the primary facts from which it may be presumed that the principle of equal treatment has not been applied to them. This approach has been endorsed and elaborated upon in several cases – for example -  in Cork City Council v McCarthy EDA 21/2008, the Labour Court stated:

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

I also refer to the principle of transparency. In that regard it has been established that a lack of transparent criteria in a selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can give rise to an inference of discrimination. In Brierton V Calor Teoranta [EDA 1510], the Labour Court noted that in the absence of a transparent system of pay determination, the burden of proving compliance with the principle of equal treatment shifted to the employer. Whilst the facts differ in the current case, the principle that can be extracted from the Brierton decision is that opaqueness within a process or system – such as a recruitment selection process - in combination with other factors, can operate to shift the burden of proof. Further, in Nevins, Murphy, Flood v Portroe Stevedores Limited [2005] 16 E.L.R. 282 it was held that discrimination is usually covert and often rooted in the subconscious of the discriminator and that a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware. In that case, the Court held there must be alertness to the possibility of unconscious or inadvertent discrimination and that mere denials of a discriminatory motive -  in the absence of independent corroboration - must be treated with caution.

Against the foregoing backdrop and having carefully considered all the sworn evidence, submissions and documentation, I make the following conclusions and findings:

·         As regards the interview which took place on the 28th May 2024, I find an absence of evidence that the Respondent applied objectively fair and transparent selection criteria. Whilst the Complainant was successful at interview, I am of the view that the process by which this was achieved lacked transparency in terms of how his competencies and merits were assessed. Accordingly, I am not persuaded by the Respondent’s assertions that the questions on the Complainant’s background were necessary in order to assess “if they were good or bad workers”. In the alternative I accept the position of the Complainant that his background should not have been a factor in assessing his capability to perform the job;

·         In relation to the question as to whether the Complainant was related to the “Taxi Nevins”, having considered all the evidence and submissions, I have come to the conclusion this question was asked as part of the MD/Respondent’s probing the Complainant’s background. I am satisfied that my conclusion in this regard is consistent with the Respondent’s evidence that there were a lot of Nevins in the area and with the Complainant’s undisputed sworn evidence that the “Taxi Nevins” were not members of the traveller community. It is also consistent with the undisputed evidence that the Complainant was questioned on his father’s/parents name. In all the circumstances, I find the question on whether the Complainant was related to the “Taxi Nevins” was asked in order to probe and/or ascertain whether the Complainant was a member of the traveller community. As a result and notwithstanding that the Complainant was successful following interview, I find that his membership of the traveller community was an issue/consideration for the Respondent in the course of the interview;

·         I am satisfied that the specific question on whether the Complainant was related to the “Taxi Nevins” could only have been asked of the Complainant – as opposed to any other candidate - as he bore the same surname. Accordingly I am satisfied the Complainant was put in a different position in the course of the interview, by comparison to another candidate who was not a member of the traveller community;

·         Whilst to some extent details as regards dates and context differed, overall I am satisfied there was a culture and tolerance in the Respondent’s workplace of the use of derogatory terminology such as “pikeys” or “tinkers” to describe travellers. I consider the Respondent accepted this in the course of the adjudication hearing when he stated that it “shouldn’t have happened but it did”.  Whilst the Complainant accepted such terminology was not directed towards him, I am persuaded by his evidence that its use left him feeling “disheartened” and discriminated against and therefore impacted upon him directly – by comparison with any other staff member who was not a member of the traveller community;

·         The Complainant resigned without making any complaint or raising any concerns. In this regard, he stated that he did not wish to make a complaint as he wished to keep his identity to himself. From the evidence it is in dispute as to whether he had received an employee manual which should have informed him as to how to raise a grievance. Whilst I am of the view that it would have been better had the Complainant raised his concerns, I am satisfied that his not doing so does not detract from my previous findings and conclusions.

Having considered all the evidence, documentation and submissions, I find the Complainant has established facts such that he has successfully shifted the burden of proof to the Respondent. Notwithstanding the Complainant’s success at interview, in light of my conclusions and findings as regards the interview questions coupled with the Complainant’s exposure in the workplace to the use of derogatory descriptions for members of the traveller community, I am satisfied the Respondent has not rebutted the burden of proving non discrimination. In all the circumstances I find the Respondent discriminated against the Complainant on the ground of his membership of the traveller community contrary to the provisions of the Employment Equality Acts [1998-2022].

CA-00066270-002   - National Minimum Wage Act [2000-2020]

This is a complaint pursuant to the National Minimum Wage Act [2000-2020]. Section 8 of the National Minimum Wage Act [2000-2020] defines working hours “in relation to an employee in a pay reference period”. Section 10 of the National Minimum Wage Act [2000-2020] states that “An employer shall select as a pay reference period for the purposes of this Act a period not exceeding one calendar month”.

Section 23 of the National Minimum Wage Act [2000-2020] provides that:

“(1) Subject to subsection (2), an employee may request from his or her employer a written statement of the employee's average hourly rate of pay for any pay reference period (other than the employee's current pay reference period) falling within the 12-month period immediately preceding the request.

(2) An employee shall not make a request under subsection (1) in respect of any pay reference period during which the hourly rate of pay of the employee was on average not less than 150 per cent calculated in accordance with section 20, or such other percentage as may be prescribed, of the national minimum hourly rate of pay or where the request would be frivolous or vexatious.

(3) A request under subsection (1) shall be in writing and identify the pay reference period or periods to which it relates.

(4) The employer shall, within 4 weeks after receiving the employee's request, give to the employee a statement in writing setting out in relation to the pay reference period or periods—

(a) details of reckonable pay components (including the value of all forms of remuneration) paid or allowed to the employee in accordance with Part 1 of Schedule 1,

(b) the working hours of the employee calculated in accordance with section 8,

(c) the average hourly pay (including the value of forms of remuneration other than cash payments) actually paid or allowed to the employee, as determined in accordance with section 20, and

(d) the minimum hourly rate of pay to which the employee is entitled in accordance with this Act.

(5) A statement under subsection (4) shall be signed and dated by or on behalf of the employer and a copy shall be kept by the employer for a period of 15 months beginning on the date on which the statement was given by the employee.”

Section 24 of the National Minimum Wage Act [2000-2020] deals with disputes about entitlement to the minimum hourly rate of pay. It stipulates:

“(1) For the purposes of this section, a dispute between an employee and his or her employer as to the employee's entitlements under this Act exists where the employee and his or her employer cannot agree on the appropriate entitlement of the employee to pay in accordance with this Act resulting in an alleged underpayment to the employee.

(2) The Director General of the Workplace Relations Commission shall not entertain a dispute in relation to an employee's entitlements under this Act and, accordingly, shall not refer the dispute to an adjudication officer under section 41 of the Workplace Relations Act 2015—

(a) unless the employee—

(i) has obtained under section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or

(ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information, and a period of 6 months (or such longer period, not exceeding 12 months, as the [adjudication officer] may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be”

It is clear that Section 24 makes it mandatory for an employee to request from his/her employer a statement of their average hourly rate of pay in respect of a relevant pay reference period, in order to pursue a dispute about his/her entitlements under the Act. In this regard, in Mansion House Ltd v Izquierdo MWD043, the Labour Court commented as follows in relation to the approach of the WRC Adjudicator:

“For the sake of completeness the Court should point out that where a claimant has failed to request a statement in accordance with Section 23(1), the appropriate course of action is to decline jurisdiction without prejudice to the claimants right to re-enter the same complaint having complied with the said section….”.

Having regard to the foregoing, I find that I have not been provided with a statement of the Complainant's average hourly rate of pay for any pay reference period, in accordance with the provisions of Section 23 of the National Minimum Wage Act [2000-2020] - which by virtue of Section 24 is mandatory. I also note that under questioning, the Complainant accepted that he hadn’t requested a statement of pay for any pay reference period. In the circumstances, I do not have jurisdiction to hear this complaint.

CA-00066270-001  -  Employment Equality Act [1998-2022]

For the reasons outlined, I decide this complaint is well founded. In relation to compensation, I note existing jurisprudence that compensatory awards should be effective, proportionate and dissuasive. Having regard to all the circumstances including the Complainant’s success at interview, I order the Respondent to pay the Complainant €7,500 which amount I consider fair and reasonable. This award is subject to such statutory deductions as may apply.

In addition, I direct the Respondent to conduct a review of its selection processes to ensure that henceforth they will comply with best practice in terms of equal opportunity as prescribed by the Employment Equality Act [1998-2022].

I also direct the Respondent to put in place an equal opportunities policy in the workplace, to provide comprehensive staff training on equal opportunity and to maintain a record of all such training to ensure it will apply to existing and new employees.

CA-00066270-002 - National Minimum Wage Act [2000-2020]

For the reasons outlined this complaint is not well founded.

Discrimination, Membership of the Travelling Community, Minimum Wage