The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
DECISION NO. DEC-E2011-166
(Represented by the Equality Authority)
Templemichael Enterprises Limited, t/a Laurel Lodge Nursing Home
(Represented by Shane Geraghty BL, instructed by
Alan Mitchell & Co Solicitors)
File reference: EE/2008/688
Date of issue: 7 September 2011
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6, 14A & 74 - Race - Training, Conditions of Employment, Discriminatory Dismissal & Harassment.
1.1. This dispute concerns a claim by Ms Weronika Zaniewsha that she was discriminated against by Templemichael Enterprises Limited t/a Laurel Lodge Nursing Home on the grounds of race contrary to section 6 of the Employment Equality Acts in relation training, conditions of employment and dismissal in a discriminatory manner contrary to section 8 of the Acts, that she was harassed contrary to section 14A and that she was victimised in accordance with section 74 (2) of those Acts.
1.2. The complainant referred her claim to the Director of the Equality Tribunal on 15 October 2008 under the Employment Equality Acts. On 15 December 2010, in accordance with her powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, 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. A submission was received from both parties. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 19 January 2011 and further hearings took place on 18 February 2011 and 31 March 2011.
2. COMPLAINANT'S SUBMISSION
2.1. The complainant is Polish and submits that after an interview with the proprietor she started work for the respondent on 21 January 2008 as a care assistant. She was not paid for the first two weeks, even though she had been on the work schedule and worked full shifts. The respondent told her she had been on trial and her paid employment actually started on 4 February 2008.
2.2. The complainant submits that she wanted others to explain the details of the job to her but they would not talk to her so she "looked and learnt". She realised that most of the other care assistants would not work with her. She talked to other employees from the Czech Republic and Poland and they said they also got a hostile attitude. When she asked for help the other workers said they were busy or showed up when the job was finished. She was also told to carry a bleeper nearly all the time and had to respond to everyone in need. Her co-workers bleeped the complainant if someone needed help rather than attend the resident themselves. She was also made to work on her own, even when two people were needed. She claimed that her water bottle was regularly emptied when she left it unattended. The complainant submits that Ms A showed her a high level of hostility and called her abusive names such as "Polish bitch" on a number of occasions. There was also an incident when Ms B blocked a doorway and stopped the complainant from getting out of a room. The complainant submits that she reported her treatment to four different Staff Nurses but they did not help her.
2.3. The complainant submits that after three months she was told by her co-workers that she was working too fast and that she rushed residents. She submits that her language skills were not good enough to say that the information was false.
2.4. The complainant submits that the respondent introduced a new system of assigning duties which helped as everyone knew which area they were responsible for. However, she was still kept isolated and had to do various jobs on her own.
2.5. The complainant submits that in May 2008, the proprietor, Ms Watters, spoke to her in the canteen, gave her a big hug and said she was very satisfied with her performance. This was witnessed by the Polish employee and Czech employee. The complainant submits that she was surprised when she was called into the office on a number of occasions to talk about situations which had nothing to do with her.
2.6. On 25 June 2008 she signed a new contract of employment and her pay was increased from €8.65 to €9 per hour. The complainant submits she was often asked to do overtime and worked for up to 13 hours/day and 6 days a week.
2.7. The complainant submits that the hostility increased and she was called names. She reported this to one of the Staff Nurses. The isolation got worse and accusatory reports were written about her. She was called into the manager's office but her explanations were not accepted.
2.8. The complainant received a letter on 14 July 2008 requesting her to attend a disciplinary hearing on 17 July 2008. She submits that at the disciplinary hearing she was given no opportunity to defend herself, she was yelled at and the interpreter was cut off all the time. The following day she wrote to the proprietor saying that there had been no complaints about her work for 5 months and the situation had arisen because of a personality clash with co-workers. On 18 July 2008, after she got the letter she claims the proprietor shouted at her in front of everyone. On 19 July 2008 the complainant fainted at work because of the stress and was admitted to Mullingar Hospital for 4 days. On 23 July 2008 she went to Laurel Lodge with her husband and met the proprietor. The complainant claims that the proprietor only talked about her concern for the patients and said she could not restore her to her job and she demanded that the complainant withdrew the letter that she sent to the proprietor on 18 July 2008. She further submits that the proprietor tried to make her take the time off as annual leave rather sick leave.
2.9. On 6 August 2008 she was given a written warning. On 7 August 2008 the new Matron showed her a report which had been written by a resident about a dispute over a room and in which they said they were very dissatisfied with the service they received. The complainant submits that the resident did not mean her. Later that day she was given a report of the disciplinary meeting and was told to sign an acknowledgement. She refused and asked for a copy to read. It contained accusations of bad treatment and handling which had not been brought to her attention before and which she denied took place. The following day she was called to the Matron's office and told to sign the acknowledgement of the disciplinary letter. The complainant submits that she refused because she did not agree with the content. He showed her other accusatory reports which the complainant submits were also false. She was called to the proprietor's office and claims that for another 2 hours she was pressed to sign the document.
2.10. On 15 August 2008 she asked for the next week's rota and was told that she was no longer working there and was handed an envelope containing a cheque and her P45.
3. RESPONDENT'S SUBMISSION
3.1. The respondent submits that the complainant was never interviewed. On 21 January 2008 she came looking for work with her husband. She was told that no work was available but she pleaded and the proprietor agreed to let her work on a voluntary basis for 2 weeks. After this she was offered temporary work. There were language difficulties from the start and the complainant was told it would be necessary for her to improve her English. She agreed to do so by attending English classes.
3.2. The respondent submits that it was not true that her training was inadequate. All employees receive training and she was informed of the work which she was required to do. The complainant knew what the duties of a care assistant were. The respondent denied that her co-employees discriminated against her, or that there was any name calling. In fact the respondent claims that the complainant insulted other employees and used discriminatory language against them. The respondent also denied that there was an unfair distribution of work and said the complainant was not asked to do tasks on her own. The respondent has no record of the complainant reporting an unfair distribution of work or of suffering stress as a result.
3.3. The respondent denies that fair procedures were not used in the disciplinary process. The complainant was given the opportunity to put her case and an interpreter was present. She was given documentation which she was allowed to take home and discuss with her husband who had good English. The respondent claims that there were numerous complainants from staff and patients which led to the disciplinary meeting on 17 July 2008. On 22 July 2008 there was a meeting with the complainant and her husband. She was informed that her behaviour towards residents would have to be improved and she needed to improve her English. Her probationary period was extended for 3 months. On 7 August 2008 she was issued with a written warning arising from the disciplinary meeting on 17 July 2008. The complainant refused to sign a confirmation which stated: "Please sign below to confirm that you fully understand the content of the letter and that you have received an initial written warning" as she did not think it was true. The Matron explained it was a record and she was not required to agree with its contents. She was shown minutes of her 3 month review when termination of her contract had been considered, and she had been given a final chance. She was told that she could not continue working for the respondent if she did not recognise there was a problem. The complainant refused to sign the confirmation and she was therefore given a week's notice.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1. At the start of the hearing the complainant withdrew her claim in relation to victimisation. Therefore, I have to decide if the complainant was discriminated against in relation to training, conditions of employment and dismissal in a discriminatory manner and if she was harassed. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
4.2. Section 85A (1) of the Employment Equality Acts, 1998 - 2007 states: "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary." This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. Further, in a recent Determination the Labour Court¹, 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."
4.3. The complainant contended that she worked as well as she could and there were difficulties with her English and this led to her not being treated equally. She alleges she was harassed by a number of colleagues and at the hearing re-asserted the evidence she had given in her written submission. She further alleges that she went to the proprietor and a number of the staff nurses about the incidents, but nothing was done. The majority of those cited by the complainant were present at the hearing and gave evidence denying the claims. The proprietor and staff nurses denied that any complaints had been made to them. The proprietor stated she was unaware of any claims of harassment.
4.4. On the balance of evidence given I conclude that there were difficulties in working relationships between the complainant and colleagues. However, these were mainly caused because of the complainant's lack of understanding of her role caused by her poor English and do not amount to harassment contrary to Section 14A of the Employment Equality Acts.
4.5. The respondent contends that when she commenced employment the complainant was introduced to a Senior Care Assistant who gave her a detailed job description, showed her a list of duties for the area she was working in and the complainant accompanied her or another Senior Care Assistant whilst they worked for her first two weeks. The Senior Care Assistant gave evidence at the hearing to confirm this. She also said that the complainant's English was poor but she considered that the complainant understood what to do. She said the complainant was too anxious in her work, she tended to overdo things and it was hard for her to take instructions. The complainant agreed at the hearing that she had seen the list of tasks that was presented at the hearing. She did not agree that she had shadowed a Senior Care Assistant for two weeks. She contended that she had been left to observe others and when she did not understand something she asked a colleague what to do but when she asked for help the complainant was told the people were busy and was shown no goodwill. The complainant also contends that she was left on her own and given the more onerous tasks.
4.6. The respondent also contended that the complainant received the same formal training as anyone in her position. At the hearing they submitted extracts of a training log which showed the complainant had received training in Manual Handling, Education on Incontinence Wear, Hoist Training, Fire Training, Skin Care and Pressure Damage Prevention and Nutrition in the Elderly. The trainer noted that because of the complainant's level of English she was given a second lesson in the use of the hoist and it was clarified that she was not to use it on her own.
4.7. In the Goode Concrete case² the Equality Officer decided that the complainants in Goode Concrete were treated less favourably than someone who had a good command of English as such a comparator, notional or otherwise, would automatically be made aware of their rights because they understood the language and were provided with the information in that language. In that context, it is notable that the Tribunal went on to make an order to "put in place clear procedures for ensuring that non-national employees are clear as to their terms and conditions of employment and also understand all safety documentation" rather than specifying that documentation should be provided in those employees' native language. The onus on the respondent in the Goode Concrete case was to make reasonable efforts to ensure that each employee understood their rights and that it ensured that they were not treated less favourably than someone who was made aware of those rights if they did not.
4.8. In applying this approach to the training of the complainant it is clear that the proprietor, the staff nurses and colleagues knew that her English was poor. From the evidence given at the hearing there were a number of occasions in the workplace when staff nurses and colleagues spoke to the complainant about her work and they consistently said they were not sure if the complainant understood them. One such occasion would not stand out but when seen collectively I have to conclude that the respondent could not have been satisfied that the complainant understood the training satisfactorily. Despite this the complainant underwent the same training as anyone else would have done, with the noted exception of the use of the hoist. Despite the complainant's acknowledged lack of understanding no steps were taken to ensure that she was trained in a manner that would ensure she fully understood her duties and responsibilities.
4.9. All documentation was in English only and no member of staff with responsibility for training the complainant could speak Polish. A member of staff working in a different area was used as an interpreter at some of the disciplinary meetings but was not used to ensure the complainant understood her training.
4.10. In this case the respondent recruited the complainant aware that she had a poor level of English but failed to make such reasonable efforts in relation to her training to ensure she understood her duties. The lack of such efforts amount to discrimination in relation to the complainant's training.
Conditions of Employment
4.11. As stated previously, it is clear that the proprietor was aware of the complainant's poor level of English on the first day. The complainant's husband had better English and most of the discussion was between him and the proprietor. At the hearing the proprietor said she felt sorry for the complainant and gave her an unpaid trial period of two weeks thinking that her English would improve. The complainant was adamant that she would not have agreed to work for nothing. She was not paid for the first two weeks she worked and without being told she had passed a trial she carried on working for the respondent and was paid after the first two weeks.
4.12. There was a misunderstanding about the initial employment of the complainant and I conclude that the proprietor did not make the situation clear to the complainant. Also, it is unrealistic to expect the complainant's English to improve significantly in two weeks. An Irish person may have accepted a trial period but I do not believe they would have worked without pay. More importantly there would have been no confusion . The confusion in this claim arose because of the complainant's poor English and would not have arisen if the complainant had been Irish. I find that the complainant not being paid for the first two weeks was discriminatory on the grounds of race.
4.13. The complainant contends that she was abused because of her nationality and level of English in being given the bleeper more often than her colleagues. She said she was given it nearly everyday. Three staff nurses gave evidence that they were responsible for giving out the bleepers at the beginning of each shift. Two bleepers were held at all times and were assigned to the person who worked on the back corridor and the floater.
4.14. They also gave evidence that they were responsible for the allocation of duties to the Care Assistants and from April 2008 a more structured task allocation rota was introduced. The respondent produced copies of these rotas which showed that the complainant was rostered as the floater more often than anyone else. The respondent said this was initially because she was the newest member of staff and later because of difficulties with the complainant's work that it was felt better she should not work in any one area for the whole shift.
4.15. The rotas and timesheets show that the complainant did work some long weeks but I accept the respondent's contention that this was because the complainant asked to work as many hours as possible. I also accept the respondent's contention that the complainant worked as a floater more than others was because of her inexperience initially and then because they felt it was better if she did not work in a specific area too much of the time because of complaints from residents. I also accept that the complainant was allocated a bleeper in accordance with the respondent's practices.
4.16. The respondent contends that they followed fair procedures in dismissing the complainant and that it was unrelated to her race. At the hearing they submitted documentary evidence that the complainant was given an informal verbal warning on 9 April 2008 because of her "behaviour with residents and staff unwilling to work as a team". It was noted the complainant complained that "she is always working in the sitting room, giving out the soup and answering bells". The complainant denied that this meeting took place.
4.17. The respondent also submitted a record of a three month review of the complainant's performance on 15 April 2008 at which they considered terminating the complainant's contract "due to poor communication with staff and residents. Residents complaining about her impatient and rough manner while attending them." The complainant pleaded with the proprietor and the Assistant Matron and the proprietor agreed to give her another chance. She was asked to improve her English and it was agreed that a further review would be held. The complainant also denied that this meeting took place.
4.18. On 6 June 2008 the complainant was issued with a verbal warning following an incident with a resident that was overheard by the proprietor. The complainant denied that the incident took place and that a verbal warning had been issued.
4.19. On 14 July 2008 the complainant was sent a letter requesting her to attend a disciplinary hearing on 17 July 2008 which included copies of notes from staff members outlining difficulties in working with the complainant and giving incidents where the complainant had treated a resident poorly. At the hearing the complainant said that no one would listen to her at the meeting and they were shouting at her. She considered there were no complaints from residents. She accepts she was told she was rushing and working too fast. Also she was not made aware of the consequences of the meeting. At the hearing the complainant was shown four complaints from residents that had been recorded by management and the complainant denied that any of the incidents occurred. A Polish member of staff with good English was present at this meeting to act as an interpreter.
4.20. The day after the disciplinary meeting the complainant submitted a letter to the respondent stating she considered she had worked for 5 months without any problems and stating she considered "there is a personality clash with some of my co-workers and I think this is causing problems for me".
4.21. The complainant was off sick from 19 July 2008 for 4 days. A new Matron started work for the respondent on 4 August and immediately reviewed the complainant's file. Subsequently, on 6 August 2008, the complainant was issued with an initial written warning by the proprietor. At a meeting on 8 August the complainant was asked to sign an acknowledgement that she had been issued with the written warning. The complainant refused to sign the acknowledgement. The Matron gave evidence at the hearing that a member of staff was acting as an interpreter and he was 'reasonably confident' that the complainant understood what was being asked. However, the complainant refused to accept there were any complaints against her. The Matron then went through the file with copies of the complaints but the complainant denied they took place and said none of them were true. Given the complainant's refusal to accept that any of the complaints took place the Matron considered there was a safety issue in relation to the care of the residents and he considered that the complainant could not continue working for the respondent and her employment had to be terminated. The complainant said she could not sign the acknowledgement as she did not agree with its' contents. She later conceded that she was told she would be dismissed if she didn't sign the acknowledgement. She also said she did not realise she had been dismissed until her name was no longer on the roster.
4.22. The complainant appealed the written warning in a letter dated 14 August 2008 but the respondent stated they did not consider it because they did not consider it safe to allow her to work there.
4.23. The Labour Court in Campbell Catering Limited v Aderonke Rasaq, EE/02/52, Determination No. EED048 stated "the fact in issue in this case is whether the complainant was discriminated against on grounds of her race and not whether she was unfairly dismissed per se. However, in considering the complaint of discrimination, all of the circumstances surrounding the decision to dismiss the complainant need to be examined" They further stated "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."
4.24. I accept the evidence of the Director of Nursing that he considered the complainant understood what was being said at the meeting on 8 August 2008 and this was borne out by the evidence of the complainant herself that she understand that she was threatened with being dismissed. Furthermore, because of the complainant's refusal to sign the acknowledgement of the written warning and her continued denial that any of the complainants were made or justified I find that the respondent had good reason to dismiss the complainant because of their concerns for the safety of the residents. I also find that the respondent, at this meeting, achieved the 'procedural standards' deemed necessary by the Labour Court to ensure this dismissal was not tainted by discrimination on the grounds of the complainant's race.
4.25. At the end of the third day of hearing the complainant's representative submitted medical reports in relation to the complainant. The representative did not want to put forward a claim in relation to disability but submitted the reports as some form of explanation for the inconsistencies and anomalies in the complainant's evidence. The medical reports were written in 2010 a long time after she worked for the respondent. Three of them refer to examinations in 2010. The other refers back to a visit to her GP around the time of her dismissal. There is no indication that the respondent had any information in relation to her medical condition, other than her certificate relating to her four days in Mullingar Hospital which states the complainant underwent investigations and was fit to return to work. I conclude that this medical evidence is not relevant to this investigation.
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that:
the respondent did discriminate against the complainant in relation to training,
the respondent did discriminate against the complainant in relation to conditions of employment,
the complainant was not harassed,
the complainant was not dismissed in a discriminatory manner.
In assessing the appropriate award in this case I am cognisant of the effect of the discriminatory training on the complainant. In that it contributed to performance issues which lead to the initiation of the disciplinary procedure. I order the respondent to pay the complainant €5,000 in compensation for the discriminatory treatment suffered. This figure represents compensation for infringement of her rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.
7 September 2011
¹ Labour Court Determination Arturs Valpeters v Melbury Developments Ltd EDA0917  21 E.L.R
² Equality Tribunal Decision DEC-E2008-020, 58 Named Complainants v Goode Concrete Limited