The Equality Tribunal
3 Clonmel Street
Employment Equality Acts, 1998 to 2008
Equality Officer Decision
Ms Anete Sterna
[Represented by Richard Grogan & Associates]
Natworth Limited t/a Portmarnock Hotel and Golf Links
[Represented by IBEC]
File Ref: EE/2009/826
Date of Issue: 16 November,2011
Headnotes: Failure to establish a prima facie case - Employment Equality Acts 1998 to 2008 ss.2, 6 and 8.
This case concerns complaints by Ms Anete Sterna (the "Complainant"), of Latvian nationality, that she was discriminated against on the ground of race, within the meaning of sections 6 (2) (h) in conditions of employment, training, dismissal and otherwise contrary to section 8 of the Employment Equality Acts 1998 to 2008 ("the Acts") by Natworth Limited (the "Respondent"). A claim of gender discrimination was withdrawn.
The Complainant referred complaints under the Employment Equality Acts (the "Acts") to the Director of the Equality Tribunal on 12 November 2009. The Complainant sent in a written submission to the Equality Tribunal which was received on 4 March 2010. An answering submission was made by the Respondent on 21 June 2010. As required by section 79 (1) of the Acts and as part of my investigation I proceeded to hearing on 26 October 2011 which was attended by both parties.
3. Summary of Complainant's case.
3.1 The Complainant stated that she was employed by the Respondent as a housekeeper in the Portmarnock Hotel and Golf Links. The Complainant claims that she was also discriminated against in the following ways:
She did not receive any proper contract.
She received contractual documentation in English only, which put her at a disadvantage, given her poor command of English.
She did not receive any proper Health and Safety documentation or Training.
She was subjected to a disciplinary process. No account was taken of her lack of English or to ensure an official translator was present nor to ensure the process was explained. The dismissal process was flawed in that the Complainant was not advised by the Respondent of the gravity of the situation and that dismissal was a possibility.
The Complainant stated that she and five other Housekeepers suspected that the Accommodation Manager was pocketing the tips left by guests in hotel rooms for the housekeeping staff. She decided to "set up" (the Complainant's words) the Accommodation Manager by planting €2 in a bedroom on Saturday 25 July 2009. When the Complainant checked later the money was gone. She confronted the Accommodation Manager the next day (Sunday) on her own and accused her of taking the money. The Accommodation Manager denied taking the money and complained to the Human Resources (HR) Manager. The HR Manager called the Complainant to a meeting held on 28 July 2009. The Complainant thought that the Accommodation Manager, not herself, was in trouble. The Complainant was accompanied by a Latvian co-worker, Mr A who, according to the Complainant, was fluent in English and could read and write in English. Also present at the meeting were the HR Manager and the Food and Beverage Manager. A further meeting was held on 11 August 2009. At this stage she knew she was in trouble but did not think she could be dismissed. Present were the Complainant, the HR Manager and the Food and Beverage Manager. There was no translator. The Complainant was informed at that meeting she was being dismissed. She received a letter confirming this the same day. She had her Latvian co-worker Mr A translate the dismissal letter for her. Mr A wrote a letter to her employer on her behalf appealing her dismissal. An appeal hearing was fixed for 24 August 2009. The Complainant understood that the appeal hearing was to be held at 4pm. She telephoned to her place of employment at 4.05pm to say she was running late. She arrived at the Hotel accompanied by her boyfriend and met the HR Manager. Her boyfriend tried to give the HR Manager the business card of the Complainant's Solicitor but the HR Manager refused to accept it. The HR Manager said that the hearing had been fixed for 12 noon and they were too late for the hearing.
The Complainant argues that, as a non-Irish national, she is particularly vulnerable in case of dismissal. She quotes the Labour Court in the case of Campbell Catering Ltd v Aderonke Rasaqthat:
It is clear that many non-national workers encounter special difficulties in employment arising from a lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture. In the case of disciplinary proceedings, employers have a positive duty to ensure that all workers fully understand what is alleged against them, the gravity of the alleged misconduct and their right to mount a full defence, including the right to representation. Special measures may be necessary in the case of non-national workers to ensure that this obligation is fulfilled and that the accused worker fully appreciates the gravity of the situation and is given appropriate facilitates and guidance in making a defence. In such cases, applying the same procedural standards to a non-national workers as would be applied to an Irish national could amount to the application of the same rules to different situations and could in itself amount to discrimination.
The Complainant states that she did not receive from the Respondent a Contract of Employment in a language she understood. She contended that following the case of 58 Named Complainants v Goode Concrete Limited, that there is an obligation on an employer to provide a Contract of Employment in a language likely to be understood by the Complainant. The Complainant contends that the employer's failure to provide her with a written contract of employment is in conflict with his obligations under the Acts because a foreign national who does not receive a Contract of Employment is in a particularly vulnerable position. The Complainant accepts that an employer is only obliged to furnish those particulars as are set out in section 3 of the Terms of Employment (Information) Act. The Complainant argues that following the decision in Rasaq there would be a requirement on the employer to take special measures to advise a foreign national of their employment rights and this would include as a minimum providing them with a notification under section 3. The Complainant contended that a notional Irish comparator would be aware of their entitlement to a statement under section 3.
3.3 The Complainant submitted that the Respondent failed to furnish her with a safety statement under the Safety Health and Work Act and that following the case of 58 named Complainants v Goode Concrete Limited there is a requirement to furnish a foreign national with a health and safety statement. There is a statutory requirement to furnish individuals with health and safety documentation. In the case of a foreign national who would not be conversant with Irish health and safety law, the contended that that there is an obligation to provide her with a Health and Safely statement and in failing to provide same to her in a language likely to be understood by her amounts to discrimination. The Complainant contended that a notional Irish comparator would be aware of their entitlement to a Health and Safety statement.
Grievance and Disciplinary procedures
3.4 The Complainant claims that at no stage was she advised of her right to raise a grievance as is required by the code of Practice and Grievance and Disciplinary procedures and therefore no method was open to her to raise any issues. Special measures may be necessary in the case of a foreign national to ensure that they are advised of their basic employment law rights and that the failure to do so amounts to discrimination.
4. Summary of Respondent's case.
4.1 The Complainant was originally employed as a cleaner at Portmarnock Hotel & Golf Links on 29 June 2006. The Housekeeping function was later outsourced in October 2006. The Complainant worked in the Hotel for the contractor until she resigned in January 2009. The Housekeeping function was taken back in-house on 2 March 2009. The Complainant was re-employed by the Respondent on 25 March 2009. One of the main reasons the Complainant was re-hired was that she was fully trained in all the required skills to work in Housekeeping and she had experience of working for Portmarnock Hotel & Golf Links.
Incident leading to dismissal.
4.2 On Sunday 26 July 2009 the Complainant confronted her direct line manager, the Accommodation Manager (who is a Russian speaking Latvian), and asked what happened to tips left by guests in the Hotel rooms. The Accommodation Manager answered that all tips left in rooms were for the Housekeepers. At this point the Complainant accused the Accommodation Manager of robbing the tips from her rooms. The Accommodation Manager was shocked at this outburst. The Complainant repeated the accusation in an aggressive manner, accusing the Accommodation Manager of stealing €2 from the hotel room the previous day. Eventually the Complainant said that she had planted €2 in some of the rooms to check if the Accommodation Manager would take it. The Complainant informed other staff members that she thought the Accommodation Manager was a thief. The Accommodation Manager submitted a full written statement to the HR Manager on Monday 27 July 2009.
4.3 The HR Manager wrote to the Complainant on 27 July 2009 in the following terms:
I am writing to you regarding the issue of tips left in guest rooms on Sunday 26 July 2009.
I would like now to invite you to attend a disciplinary meeting with the Food and Beverage Manager and myself on Tuesday 28 July 2009 at 10am in Room 408.
You should be advised that the outcome of this meeting could result in disciplinary action up (sic.) being taken against you. However no decision will be made until a full and thorough investigation of this matter is completed, and you have been afforded an opportunity to present your version of events.
For your information I enclose a copy of Portmarnock Hotel & Golf Club disciplinary procedure.
You have the right to be appropriately represented at this meeting should you so wish, and I strongly advise that you exercise this right.
4.4 On 28 July 2009 the disciplinary meeting took place attended by the HR Manager, the Food and Beverage Manager, the Complainant and a Latvian co-worker Mr A. Mr A was the Complainant's elected witness and was not a Company appointed translator. The Complainant never asked for any assistance with understanding the process or for the Company to appoint translator. At the meeting the Complainant stated that she had planted €2 in room 236 before lunch on Saturday 25 July 2009. After lunch she checked and the money was still there. The Accommodation Manager later went into the room to check it was empty. The Complainant went into the room subsequently and the money was gone. The Complainant confirmed that on the following day she accused the Accommodation Manager to her face of stealing. The Complainant confirmed that she told the rest of the staff because she felt the Accommodation Manager did it. The HR Manager stated that she would investigate the matter and get back to the Complainant once all information was gathered.
4.5 The Complainant was certified unfit for work from 30 July to 4 August 2009. On her return the Complainant was invited to attend a further meeting as part of the disciplinary process on 10 August 2009. The Complainant was advised of her right to have representation. The Meeting was attended by the HR Manager, the Food and Beverage Manager and the Complainant. The Complainant was not accompanied by anyone. According to the Respondent, the Complainant did not request an interpreter nor did she give any indication that she did not understand the serious of the situation. At this meeting the HR Manager explained to the Complainant that she was not able to find from CCTV footage or the records of electronic room keys any evidence of entry to room 236 on the day she alleged the Accommodation Manager had stolen money from that room. Moreover the Complainant was not rostered to clean rooms on that floor. Initially the Complainant maintained her initial story but later said that the incidents may have happened in a room on another floor.
4.6 The Complainant was invited to attend a disciplinary decision meeting on 11 August 2009. She was told at this meeting that her contract with the company was to be terminated immediately as a direct result of "unfounded accusations made about the Accommodation Manager and also defamation of the Accommodation Manager's character in discussions with other staff members." This was confirmed in a letter to the Complainant on 11 August 2009. The letter stated that if the Complainant wished to appeal the decision she was to contact the General Manager in writing within 7 days from the issue of the letter. The Complainant had Mr A draft an appeal to the General Manager dated 13 August 2009.
4.7 The appeal was fixed for 24 August 2009 at 12 noon. The Complainant was informed of this by phone by the HR Manager. At 4.05pm on the day the Complainant phoned to say she was on her way to the Hotel. The Complainant stated that she understood that the appeal hearing was fixed for 4pm, not 12 noon. The Complainant and her boyfriend called to the HR Manager. The HR Manager tried to contact the General Manager but he had already left to return to the UK where he is based. The HR Manager explained that since she had been party to the decision to dismiss the Complainant she could not hear the appeal. The Complainant should suggest alternative dates for the appeal. The Complainant's boyfriend tried to give a solicitor's business card to the HR Manager saying she should contact the solicitor. The HR Manager refused to take it. The Respondent said that there was no further contact from the Complainant or from her representative. As far as the Respondent is concerned the appeal is still open. They have not issued termination documents.
4.8 As regards the other elements of the Complainant's case, the Respondent replied as follows:
Allegation that the Complainant did not receive any proper contract or contractual documentation in a language likely to be understood by the Complainant.
4.9 The Respondent stated that they did issue a written contract in English and this was accepted by the Complainant in proceedings before a Rights Commissioner. A copy of a contract of employment dated 31 March 2009 and addressed to the Complainant was produced. The Respondent also produced an acknowledgment signed by the Complainant recording her receipt of the Staff Handbook. A Staff Induction and Training Record was also produced by the Respondent. It was initialled by the Complainant and shows that she received training on the contents of the Contract of Employment, Employee Handbook, Health and Safety, Payment of Wages, Discipline/Grievance Procedures and other employment related issues. The Respondent contends that the obligation on employers arising out of the case "58 named Complainants v Goode Concrete Limited" (DEC-E2008-020) does not extend to giving information or documentation to employees in their native language or a language of their choosing, but rather the obligation is simply that the information be understood by the employees. The Respondent contended that they at all times complied with this requirement based on an honest and well-founded belief that English amounted to a language likely to be understood by the Complainant. The Complainant gave no indication that that she did not understand the English language or was not comfortable using it.
Allegation that the Complainant did not receive any proper Health and Safety documentation or Training.
4.10 The Company disputes this. They state that the Complainant did receive health and safety training to the extent mandated and necessary by the nature of their work. The company, in accordance with its safety statement, identified risks which were applicable to the workplace, particularly with respect to housekeeper duties. This training included Cleaning Operators Proficiency for which the Complainant received a Certificate. She also was given a copy of the Health and Safety manual and signed an acknowledgment form that she understood it. The Complainant received training on these and other similar matters during her Induction Training. She also received training in Bathroom and Bedroom standards. Written evidence was submitted. Her training was the same as that received by all employees in the Company received regardless of race.
5. Director's conclusions
5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. In a recent Determination the Labour Court, whilst examining the circumstances in which the probative burden of proof operates held as follows -
"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. 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.
In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."
5.2 It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.3 Section 6(1) of the Acts provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)....." Section 6(2) (h) of the Acts defines the discriminatory ground of race as follows - "as between any 2 persons, that they are of different race, colour, nationality or ethnic or national origins". It follows that the Complainant must establish that she was subject to less favourable treatment on the ground of race (nationality) because she is Latvian.
Section 8 of the Acts provides that an employer shall not discriminate against an employee in relation to conditions of employment or training. Section 8 (6) states:
an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one --
(a) the same terms of employment (other than remuneration and pension rights),
(b) the same working conditions, and
(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures, as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.
Section 8 (7) states:-
an employer shall be taken to discriminate against an employee in relation to training or experience for, or in relation to, employment if, on any of the discriminatory grounds, the employer refuses to offer or afford to that employee the same opportunities or facilities for employment counselling, training (whether on or off the job) and work experience as the employer offers or affords to other employees, where the circumstances in which that employee and those other employees are employed are not materially different.
5.4 Discriminatory treatment in relation to Conditions of Employment and Training
The Complainant has claimed that the Respondent discriminated against her by failing to provide her with any proper contract. She claimed she received documentation in English only, which put her at a disadvantage, given her poor command of English. She claimed she didn't receive Health and Safety documentation or training.
The written and oral evidence presented to me leads me to conclude that in respect of contracts, documentation and training the Complainant received from her employer the same treatment as persons of any other race or nationality.
The Complainant's representative argued that it is settled EU law that "discrimination involves the application of different rules to comparable situations or the application of the same rules to different situations..." She asserted that the Complainant's poor command of English put her in a materially different situation than a notional Irish comparator. To treat her the same amounts to indirect discrimination. The employer ought to have given the Complainant the documentation in a language she could understand.
There is no statutory or legal requirement on an employer to provide more favourable treatment to foreign nationals. Section 3 of the Terms of Employment (Information) Act 1994 imposes certain legal requirements on employers in relation to information that must be given in writing to all employees. To assert that in all cases there is a legal requirement to provide foreign nationals with documentation in a language likely to be understood by the employee is incorrect. All employers have a duty to ensure that the rights of their employees are not violated and, in some cases, where facts support such an approach, documentation may be required to be translated. Facts supporting such an inference must be provided by the Complainant.
In the current case, the Complainant did not at any stage inform her employer that she had a difficulty understanding any documentation supplied to her in English. In oral evidence to me, she stated that her Latvian co-worker Mr A could have translated her employment contract for her. She also confirmed to me that she understood the main particulars of the terms of her contract of employment. She had confirmed to her employer in writing that she had received a copy of the health and safety manual and understood it. I conclude that the facts in this case do not show that, in relation to understanding her employment contract, health and safety, grievance or disciplinary procedures or other documentation received by her, the Complainant was in a situation which was materially different to that of persons of another race or nationality. Therefore the employer treated her in the same way as other employees would be treated in a comparable situation.
Accordingly, I find that the Complainant has failed to establish a prima facie case of discrimination in relation to this element of her complaint.
6.1 The Complainant asserts that the disciplinary procedure imposed on her was flawed in that she did not understand prior to the initial hearing that she was under investigation or that she faced dismissal. The letter dated 27 July 2011 calling her to an investigation of the complaint against her did not state that she risked being dismissed. The company did not provide an official interpreter at any of the disciplinary hearings and her fellow Latvian co-worker Mr A attended only the first (investigative) hearing and neither of the two subsequent hearings. When the Complainant sought to get the Respondent to communicate with her solicitor, the HR Manager refused to accept his business card. Her poor command of English disadvantaged her compared with a notional Irish comparator. The Complainant considers that I ought to follow the dicta of the Labour Court in Campbell Catering v Rasaq and find that the Complainant was dismissed on grounds of her race.
6.2 I consider that there are major factual differences between the present case and Campbell Catering v Rasaq. In Rasaq, the Labour Court found as a matter of fact that the complainant did not steal bananas as alleged (the reason given for her dismissal) and could not reasonably be accused of attempting to steal. The complainant believed she had a right to take bananas for consumption on the premises and the verity of that belief was not challenged. In Rasaq, the Labour Court found that the complainant was not afforded fair procedures in the investigation of the misconduct of which she was accused. The investigation fell far short of the standard of fairness that could be expected from a reasonable employer. They also fell short of what is prescribed by the respondent in its staff manual. The complainant was not informed of her right to be represented at any disciplinary hearing and there was no investigation in any meaningful sense into the allegations made against the complainant. The Labour court concluded that the complainant was treated less favourably than another employee facing allegations of serious misconduct were or would be treated.
6.3 In the present case the letter from the Respondent to the Complainant invited her "to attend a disciplinary meeting" and advised her that the outcome of this meeting could result in disciplinary action being taken against her. There can be no doubt that the Complainant was aware from the contents of the letter received prior to the first hearing that she was in trouble.
6.4 It is common practice for such a letter to warn the employee that the outcome of this meeting could result in disciplinary action up to and including dismissal being taken against him or her. The words in italics are missing from the letter sent. No reason for this omission was given by the Respondent. The Respondent argued, however, that this omission did not injure the Complainant's right to a fair hearing since the letter enclosed a copy of the disciplinary procedure which made it clear that dismissal was a possibility.
6.5 In the present case there is no doubt in my mind that the Complainant tried to "set up" her supervisor, accused her of stealing and spoke to colleagues about her suspicions. There is no doubt that such actions amount to serious misconduct. The Complainant did not follow the appropriate grievance procedure to raise her concerns about tips. As regards the disciplinary procedures, the employer followed the procedures laid down it the employee's contract of employment. In the invitation to the disciplinary hearing the employer enclosed a copy of the disciplinary procedure and stated that the Complainant had the right to be appropriately represented at this meeting should she so wish, and was strongly advised to exercise this right. In all this the Respondent followed fair procedures. The failure to state explicitly in the letter that the Complainant faced the possibility of dismissal is to be regretted. However, I cannot conclude that this failure was in any way linked to the Complainant's race or that such a mistake could not have been made in a letter to an Irish employee.
6.6 The Complainant claims that the failure of the Respondent to provide an official interpreter put her at a particular disadvantage in the disciplinary hearings, particularly those where her co-worker Mr A was not available to attend. If the Complainant had difficulty following the proceedings she did not alert the Respondent to this fact. There is no duty on an employer to provide interpretation as a matter of course in disciplinary hearings, but only if the employee notifies them that he or she cannot follow proceedings.
6.7 Finally, the Complainant was in contact with an Irish solicitor prior to her attending for the appeal hearing. Once an employee is being advised by a legal practitioner, it must be assumed that the employee is fully aware of his or her rights. While, as the Labour Court asserted in Rasaq, many non-national workers encounter special difficulties arising from a lack of knowledge concerning employment rights, this is not the case here. Therefore the contention by the Complainant that by applying the same procedural standards to a non-national worker as would be applied to an Irish national could amount to the application of the same rules to different situations and could in itself amount to discrimination is not the case here.
Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
the Respondent did not discriminate against the Complainant on the ground of race pursuant to section 6(2) of the Acts in terms of her conditions of employment contrary to section 8 of the Acts.
the Respondent did not discriminate against the Complainant on the ground of race pursuant to section 6(2) of the Acts in terms of her conditions of employment by denying her the same treatment in relation to dismissal contrary to section 8 (6) (c) of the Acts.
Accordingly, I find in favour of the Respondent in this matter.
16 November 2011.