The Equality Tribunal
3 Clonmel Street
Phone: 353 -1- 4774100
Fax: 353-1- 4774141
Employment Equality Acts 2000 to 2008
EQUALITY OFFICER'S DECISION
(Represented by Grogan and Associates Solicitors)
Goode Concrete Limited
(Represented by Reidy Stafford Solicitors)
File No. EE/2010/005
Date of Issue: 7 March 2011
File reference: EE/2010/005 - DEC-E2011-039
Employment Equality Acts -Discriminatory treatment - Conditions of employment - Training Race- Prima Facie Case
1. Dispute and delegation
1.1 This dispute concerns a claim by Mr. Jakov Diadiajev (hereafter "the complainant") that he was subjected to discriminatory treatment and discriminatory dismissal by Goode Concrete Limited (hereafter "the respondent") on the grounds of his race. The complainant submitted that the first date of discriminatory act was on 6 November 2006.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 5 January 2010 under the Employment Equality Acts. On 16 July 2010, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Tara Coogan- 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. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 20 December 2010. An interpreter provided by the Tribunal was present.
2. Case for the complainant
2.1. The complainant, who drove a concrete mixer, is a Lithuanian national. He submitted that he did not receive a proper contract of employment or health and safety documentation.
2.2. The claim for discriminatory dismissal was withdrawn at the hearing.
3. Case for the respondent
3.1. The complainant refuted the claim made by the complainant. The complainant was provided with a contract of employment that was signed and dated by the complainant on 13 November 2006. It was submitted that the Equality Tribunal has no jurisdiction investigate complaints concerning written terms of employment unless the complainant can show that non-Irish workers were treated less favourably than Irish workers were in a comparable situation.
3.2. The respondent submitted that even if there was a legal requirement to provide a non-native English speaker who had limited English with a contract in the person's native language, this particular clam would be out of time. The contract was signed on 13 November 2006 and the claim was lodged with the Tribunal on 5 January 2010.
3.3. Furthermore, the respondent submitted that it would be contrary to fair procedure and against the respondent to assume that because a particular person is a native of a particular country that his/her ability to understand English is compromised. The respondent, relying on the decision in Ryanair v The Labour Court (2007 ELR 67), submitted that the Equality Tribunal cannot make any decision as to whether or not the furnishing of health and safety documentation in English could constitute less favourable treatment on grounds of their race in the absence of evidence clearly confirming the inability of each and every complainant to understand a reasonable level of English.
3.4. The respondent submitted that even if the argument that a complainant's health and safety documentation ought to be in the complainant's native language was to be accepted, such an approach would itself lead to potentially discriminatory situations. For example, potential employees would have to be tested to assess their proficiency and employers would face extra costs having to translate documents to a 'native language'. The respondent submitted Clare Civil Engineering v Ostojic, Arbuzovs, Majasojedvos and Plonkis (EDA101) as an authority in the matter.
3.5. The respondent submitted that the complainant had not named any comparator in his submission. The respondent relied on Toker Developments Limited v Edgars Grods EDA10 where the Labour Court determined that a hypothetical comparator can only be considered in circumstances where there is some evidential basis upon which it can be concluded that such a comparator would have been treated more favourably in the circumstances of the particular case. It was submitted that no such evidence was adduced and it would be impermissible for this Tribunal to reach conclusion of fact based upon mere supposition or speculation.
4. Conclusion of the equality officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of 'sufficient significance' before a prima facie case is established and the burden of proof shifts to the respondent. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".
4.2. The preliminary objection concerning the issue of time limits. The Acts clearly impose requirements concerning the referral of a claim for redress. Section 77 governs this area and in circumstances where an occurrence of discrimination has taken place requires a complainant to make a referral within 6 months from the date of occurrence of discrimination (12 months on application to the Director or the Circuit Court in cases where there is reasonable cause). The Acts do also allow for investigation extending longer periods where the complainant can establish the treatment to be on-going discrimination. Section 77(6A)(a)(ii) provides for circumstances where discrimination arises by virtue of contract, discrimination occurs throughout the duration of the contract. I have been provided with no evidence to suggest that the terms of the complainant's contract were discriminatory. However, bearing in mind the purpose of these Acts and the language set out in section 6, I am satisfied that provided that the complainant can show facts from which an inference of discrimination can be drawn, a contract of employment may, in certain circumstances, constitute on-going discrimination. I am satisfied that I have the jurisdiction to hear the facts of this case and issue a decision accordingly. Furthermore, I am satisfied that this Tribunal has broad jurisdiction to investigate claims concerning all aspects of employment provided that such claims have a nexus with a protected ground in accordance with the Acts.
4.3. I find that the complainant did receive a standard contract of employment in line with all other employees - regardless of their nationality - working with the respondent. No comparator was named and the complainant simply relied on the argument that he ought to have been given a contract in a language that would have been 'likely' to have been understood by him. It was submitted that the complainant did not speak English and could not therefore understand his contract of employment.
4.3. The complainant's submission referred to no incidents or facts other than the facts set out in the paragraph 2. During the investigation, the complainant told me that he had been suspended during his employment. The facts were vague and the complainant stated that he was suspended for something that was not his fault. The respondent was unable to reply to these allegations as it was the first time it had been notified about this alleged suspension. Having considered the oral evidence I find that this evidence to be of little value in relation to the claim before me. The complainant provided no evidence of facts from which this Tribunal can draw an inference of less favourable treatment or that the respondent distinguished Irish and Non-Irish workers in an employment related matter.
4.4. It is clear that there is no legal requirement to provide non-native English speakers with a contract of employment in a language likely to be understood by such a person per se. There is a legal requirement not to discriminate on the ground of race. For an inference of discrimination to be drawn in circumstances where all employees were treated the same, a complainant must be able to show facts that support an argument that this same treatment resulted in the complainant experiencing less favourable treatment because of his nationality. While I accept that the complainant could not have understood his contract of employment without assistance, it is clear that he was able to abide by same during his employment. The complainant in this case has not shown me any evidence of less favourable treatment as a result of him alleging that he did not understand his contract of employment. The Tribunal was invited to draw an inference of discrimination on the mere assertion that a foreign worker was treated less favourably than Irish workers.
4.6. In relation to the health and safety training. I was provided with no evidence in relation to this by the complainant. I note that the respondent submitted that the complainant received the same training as other workers did and that the complainant had received assistance from his bi-lingual co-workers including his own son. I have been presented with no evidence to support an argument that the complainant was treated any less favourably than any other employee regardless of the nationality is, was or would have been treated.
5.1. Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that the complainant has not established a prima facie case of discrimination on the race ground. Therefore, the case fails.
7 March 2011