The first Decision of 2014 was issued by the Director, Mr. Niall McCutcheon, and relates to 34 complainants, 30 of whom turned up for the hearing. While a number of issues including gender were included in the original complaints the Decision ultimately dealt with only three substantive issues were addressed, failure to pay the REA rates, failure to provide written contracts of employmentand an assertion relating to inducements of additional hours in return for renting accommodation from a Director of the respondent.Â
The representative for the complainants argued that the Tribunal should infer, because all of the employees were non nationals, that the employer’s intention was to exploit non-Irish nationals and argued that a notional Irish comparator would not have been treated in this way. The Director mentioned two Labour Court cases Melbury Developments v Arturs Valpetters and Businkas v Eupat when considering the case. Very usefully, he also detailed Toker Developments v Edgars Grods in which the Labour Court gave some guidance on the use of notional comparators and the need for some evidential basis for the assertion being made. The Director was not satisfied that there was any less favourable treatment, that is that a notional Irish comparator would have been treated more favourably, and that the complainants had failed to establish a prima facie case of discrimination as alleged. Therefore, the complaints were not upheld.
Why is this case of interest?
- The use of the Labour Court case Toker Developments v Edgars Grods shows how the guidance in respect of notional comparators applies in practice
- A complainant must still establish a prima facie case of discrimination even where there is no appearance or defence presented by a respondent
- Also of interest is that the Director, who found that a notional Irish comparator would not have been treated differently in respect of pay, stated that as this was equal pay, it could only be dealt with under section 29 of the Acts. This is entirely in line with section 2(4) of the Acts which states that the term “conditions of employment”, dealt with in section 8, does not include remuneration.
- It is a reminder of the need for a real comparator for equal pay claims rather than a notional one.
- There is no provision for class actions under the Employment Equality Acts
Read the full case here:
http://www.labourcourt.ie/en/Cases/2014/January/DEC-E2014-001.html
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