Case Number: DEC-E2012-024- Full Case Report. Equality Tribunal

• Docket Number: DEC-E2012-024- Full Case Report
• Date: 05 March 2012
• Court: Equality Tribunal

The Equality Tribunal

Employment Equality Acts

Decision DEC-E2012-024

PARTIES

Stefan Hric
(Represented by Brian Conroy B.L,
instructed by Able Solicitors)

- V -

First Express Ltd T/A Nightline
(Represented by Peninsula Business Services (Ireland) Ltd.)

File reference: EE/2009/115
Date of issue: 5 March 2012

Keywords - Employment Equality Acts - Discriminatory Treatment - Discriminatory Dismissal - Victimisation - Victimisatory Dismissal - Equal Pay - Race - Valid Comparator - Time limits - Credibility - Prima facie case

1. DISPUTE

1.1 This dispute concerns a claim that the complainant was subjected to discriminatory treatment, discriminatory dismissal, victimisation and victimisatory dismissal by the respondent on the grounds of race in terms of section 6(2) of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to sections 8 and 74 of those Acts. The complainant also lodged a claim for equal remuneration under Section 19 of the Acts.

1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 11 February 2009 under the Acts. On 9 January 2012, in accordance with his powers under section 75 of the Acts, the Director delegated the case to Conor Stokes - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were sought and received from the parties. As part of my investigation, I proceeded to hearing on 17 February 2012 (as required by Section 79(1)). All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.

2. PRELIMINARY MATTERS Scope of the Investigation

2.1 At the start of the hearing, the complainant withdrew the elements of the complaint that related to dismissal and victimisation.

Equal Pay

2.2 In the course of the hearing, the complainant's representative informed the Equality Officer that the equal pay complaint only related to the period from 11 February 2006 until 9 April 2007. In addition, the complainant's representative submitted that it had come to their attention that the named comparator was not valid and that they now wished to withdraw that comparator and substitute the names of two alternative valid comparators. The case of County Louth VEC v the Equality Tribunal and Pearse Branngian (Unreported, High Court, McGovern J. 24th July 2009) was put forward as an authority to enable them to amend the complaint in this fashion.

2.3 The complainant was informed that, in the opinion of the Equality Officer, the withdrawal of the existing comparator and subsequent nomination of two heretofore unknown comparators constituted the submission of a new equal pay complaint rather than amounting to an amendment of a pre-existing equal pay complaint. In that regard, the date of the hearing would then be regarded as the date of referral of the equal pay complaint for the purposes of Section 77(1) of the Acts and, accordingly, any order for compensation in the form of arrears of remuneration can only extent back for a period of 3 years prior to that date in accordance with Section 82(1)(a) of the Acts.

2.4 It was pointed out to the complainant that such a course of action, when taken with the submission that there was a breach of the principle of equal pay for the period from 11 February 2006 until 9 April 2007, would in effect mean that no compensation would be payable to the complainant, should such a complaint be upheld. The complainant indicated that if the Equality Officer's decision was that the nomination of alternative comparators constituted the submission of a new complaint, then it would not be proceeding with the case for equal pay and would not oblige the Tribunal to continue to consider the evidence before it in relation to the equal pay component of the complaint.

Time limits

2.5...