This is a case of three Polish workers claiming equal pay (on grounds of race), equal treatment in conditions of employment and discriminatory dismissals against a respondent whose representative withdrew from the case and who failed to attend the Tribunal’s hearing.

The claimants contended that they were paid half as much as two Irish comparators. However there were (minor) inconsistencies in their accounts of the sums paid to the comparators and some indications of supervisory functions on the part of the comparators. Hence their equal pay claims failed.
On equal treatment in working conditions, the Tribunal concluded that there was not enough evidence of inferior working conditions to those of Irish workers, such as being given dangerous jobs and being made to work on weekends and public holidays. However, on the failure of the respondent to pay PRSI and tax payments on behalf of the Polish workers, the Tribunal accepted that Irish workers would not have been treated in this manner.

On the claim of discriminatory dismissals, the Tribunal once again concluded that there was insufficient evidence that Irish workers would have been treated differently.

The Tribunal quotes from the Labour Court in ED/01/13, Determination No. 045 Citibank and Massinde Ntoko, “This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainant's power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach and which may only be in the respondents capacity of proof."
This approach obviously has its difficulties when the respondent fails to attend to have its evidence tested at hearing. The claimants were awarded €15,000 each for the successful parts of their claims. However, in the absence of the respondent, it is difficult to see what more they could have done to establish the claims which were unsuccessful.

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