First race discrimination finding highlights preferences given to EEA nationals

December 2001 saw the first ever finding upholding a claim of racial discrimination in Irish employment law. The Equality Officer rejected the argument that the EU Treaty obligation not to discriminate between European Economic Area (EEA) nationals justifies discrimination against non-EEA workers.

A case of racial discrimination (IE0112228F) has been established in Irish employment law for the first time, with an award to a Malaysian doctor of the following: salary arrears for almost nine months; overtime payments averaging 29 hours per week over that period; and payment of a 'living out' allowance for that period..

The case was taken by Dr Bennett Kim Heng Eng against St James' Hospital, Dublin. The claimant occupied a supernumerary intern post for nine months, to March 2001, and alleged that he was discriminated against because he did not receive any basic salary. His Irish-national comparators had been paid basic salary.

In a decision issued on 20 December 2001, the Equality Officer (the state official who decides on such cases) concluded that there was an employment relationship in this case (even though there was no basic salary) and added that the internship could not be considered to be vocational training. This meant that a prima facie case of discrimination was established, since the hospital acknowledged that the claimant was engaged in like work to his comparators. Therefore, the onus was then on the hospital to show that there were grounds other than race for the difference in pay.

The hospital argued that the Irish government's work permit rules (IE0202203N) required that preference for such permits be given to European Economic Area (EEA) nationals. However, the Equality Officer did not accept that this preference applied to paid posts only and that non-EEA nationals could instead be employed in unpaid posts.

Another argument of the hospital was that, while a ranking system normally determines the posts a medical graduate receives, sometimes non-EEA graduates can be displaced in order to accommodate EEA graduates. This, the hospital claimed, was necessary to fulfil its European Community Treaty obligations to treat EEA workers equally. It added that the claimant's ranking as a graduate had not automatically entitled him to a salaried post.

However, the Equality Officer took the view that while the Treaty prohibits discrimination between nationals of different EEA Member States, this did not imply that the Treaty obliged employers to discriminate against non-EEA nationals. Under European law, she said, third-country nationals do not appear to enjoy the right to equal treatment with Member State nationals. However, European law does not require discrimination against such persons and the matter of how they are treated is left to each Member State's national law.

Therefore, she felt, there was no conflict between European and national law in this matter and that the relevant national law (the [Employment Equality Act 1998](http://www.odei.ie/EmploymentEquality/Employment Equality Act, 1998.htm)- IE9909144F) applied. The claim of discrimination was upheld.