The complainant, a Chinese national, was a part-time employee with the respondent since February 2002 until January 2011. She worked mostly weekends. Mr. M was similarly employed sometime after the complainant.  In June 2010 the complainant’s pay rate was cut from €15 per hour to €10 per hour.  Her hours were also cut.  After 27 December 2010 she received no hours at all although Mr. M continued in his employment

The respondent neither made a submission to the Tribunal nor attended the hearing.

The Equality Officer first addressed the timeliness of the complaint as it had been submitted on 4 July 2011 while the complainant’s last day at work was 27 December 2010, suggesting it was 8 days out of time.  The Equality Officer indicated two issues that were relevant.  First, the complainant would have been entitled to four weeks notice period suggesting that the end of the employment would have been 27 January 2011.  Second, the respondent allegedly continued to tell the complainant that hours would be allocated to her as they became available although this did not happen and ultimately she was told there was no more work for her.  The Equality Officer considered the matter in accordance with s77(6) which provides for the extension of the time to make a complaint if the delay is due to a misrepresentation by the respondent. Having considered the totality of these matters the Equality Officer concluded the complaint had been submitted in time.

The Equality Officer referred to the EAT decision, in a parallel case relating to the complainant’s employment, which indicated that it had been withdrawn and on that basis the complainant was not precluded from proceeding with her equality claim in accordance with s101(4).

It appears that the complainant may have submitted an equal pay claim but her complaint actually related to the reduction in her pay rate in comparison to others.  Her pay rate was cut by 33% in June 2010. She produced a letter from the respondent’s representative to the union dated 11 February 2011 proposing a pay cut of 10% for all staff.  The complainant was the only non-Irish member of staff and the only female member of staff at the time.  Mr. M continued to get work after the complainant’s hours had stopped.

The Equality Officer found that the complainant had established a prima facie case which the respondent had not rebutted and upheld both discriminatory treatment and discriminatory dismissal on the gender and race grounds.

The complainant was awarded €10,000 as compensation which was not subject to PAYE/PRSI.

Why is this case of interest?

• Employers who consider their part time staff to be ‘casual’ must understand that the employment law provisions may relate to them as much as those people they consider ‘employees’.  In this case the complainant’s different treatment was :
  • A pay cut of 33% while the remainder of staff received a proposal of 10% pay cut,
  • Her pay cut was unilaterally imposed while the remainder of staff received a formal proposal
  • Her pay cut occurred 8 months earlier than that relating to the remainder of staff
  • She was not offered any further work while a male employee with less service was retained.
• This is one of the rare cases where a ‘misrepresentation’ on the part of the employer grounded an extension of time in accordance with s77(6).

To read the full case:

http://www.workplacerelations.ie/en/Cases/2014/September/DEC-E2014-064.html