THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2011 - 185
Ms Ludmila Umarova (represented by Richard Grogan and Associates, Solicitors)
Noonan Services Group Ltd
(represented by IBEC)
File References: EE/2009/700
Date of Issue: 28th September 2011
1.1. The case concerns a claim by Ms Ludmila Umarova that Noonan Services Group Ltd discriminated against her on the ground of gender and race contrary to Sections 6(2) (a) and (g) of the Employment Equality Acts 1998 to 2008, in terms of training, conditions of employment, harassment and other discriminatory conduct.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 21 September 2009. A submission was received from the complainant on 1 October 2009. A submission was received from the respondent on 24 February 2010. On 29 June 2011, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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 this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 22 July 2011.
2. Summary of the Complainant's Written Submission
2.1. The complainant is a Russian national. She alleges that she did not receive a contract of employment, that she did not receive health and safety training, and that she was promoted, yet received less pay on promotion. The complainant further submits that when she brought in a union official to translate for her, she was badly treated.
3. Summary of the Respondent's Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all. It submits that the complainant did receive a contract of employment in her own language, as well as the respondent's Safety, Health and Welfare booklet translated into Russian, as well as an updated version, which was also translated into Russian. The respondent maintains that no complaint of harassment, on the grounds of gender or race, was ever received from the complainant.
3.2. With regard to the complainant's promotion and subsequent loss in pay, the respondent states that on 18 March 2008, after nearly seven years with the company, the complainant was offered a promotion to supervisor on a part-time basis on the site where she had worked previously as a cleaner. The promotion was offered on the basis that it would only be part-time and that the complainant would continue to work as a cleaner in the mornings. It was explained to the complainant that it was not suitable for her to continue to work as a cleaner at the same site at which she was a supervisor, and she was offered alternative cleaning duties at another site nearby. However, according to the respondent, the complainant advised her manager that she preferred to work as a part-time supervisor only, and secure alternative employment in another sector in the mornings. The complainant continued to work in her supervisor capacity from March 2008 til May 2009, and after loss of her employment in another sector, also took up cleaning duties with the respondent again. Then her supervisor position was made redundant, on the basis that she was the supervisor with the shortest service. At the time of the submission, the complainant continued to be employed with the respondent as a cleaner.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was discriminated against, and harassed, within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. 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.
4.3. At the beginning of the hearing, the complainant withdrew all complaints of alleged discriminatory treatment on the gender ground, and withdrew her complaint of discriminatory treatment with regard to training on the race ground.
4.4. With regard to the provision of a contract of employment in a language the complainant could understand, the representative of the respondent argued that the Tribunal had no jurisdiction to investigate these complaints, since they would have arisen when the complainant started to work for the respondent in 2000, and would therefore be out of time pursuant to the provisions of S. 77(5) of the Acts.
4.5. I cannot accept this argument in its original form. The respondent provided the complainant with an updated, signed statement on her terms of employment in September 2004. A copy of the statement, signed by both parties, was submitted in evidence. Another statement of terms and conditions of employment was provided when the complainant was promoted to supervisor in 2008. A copy of this statement, signed by both parties, was again submitted in evidence. This means that the complainant had no contract of employment with the respondent from 2000 until September 2004.
4.6. With regard to the complainant's proficiency in the English language, and the possible need to provide her with a translation or an explanation of her terms and conditions in Russian, the situation emerged from the parties' evidence is as follows: At the time of the hearing, in July 2011, the complainant's English was excellent and she had no need for an interpreter to follow proceedings. The respondent's representative argued that this showed that the complainant was not in need of a contract of employment in a language she could understand. However, the complainant stated quite firmly in her evidence that when she arrived in Ireland in 2000, she had no English, and that her English would still have been quite poor when she commenced employment for the respondent in 2001.
4.7. I prefer the evidence of the complainant on this point. The fact that she has been able to develop a high degree of proficiency in English after ten years of being immersed in an English-language environment does not make her evidence that she struggled with the language for some time after her arrival less credible. However, the complainant did not make any statement that she was unable to understand the statement she was provided with in 2004.
4.8. The Labour Court in the case of Campbell Catering Ltd and Aderonke Rasaq [EED048] has 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 in fulfilled and that the accused worker fully appreciates the gravity of the situation and is given appropriate facilities and guidance in making a defence. In such cases, 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."
4.9. If the complainant's English would still have been so poor in 2004 that she would have been unable to understand the terms of her contract, a potential act of ongoing discrimination, in terms of not providing her with a translation into Russian, might have arisen at this point. But, as noted above, the complainant did not seek to make such an argument. Accordingly, I am satisfied that the complainant was provided with a statement of her terms and conditions of employment in September 2004, some five years before she lodged her complaint with the Tribunal, that this part of her complaint is out of time pursuant to S. 77(5) and that I have no jurisdiction to make a finding on the matter.
4.10. With regard to her allegation of harassment, the complainant did not make out a prima facie complaint of harassment on the ground of race in her oral evidence, despite considerable efforts to clarify the concept to her. Accordingly, this part of her complaint must fail.
4.11. With regard to the complainant's complaint that she was promoted to supervisor, yet received less pay on promotion, the representative of the respondent again argued that this complaint should not be investigated due to time limits, since it arose in March 2008 and the complaint was filed in September 2009. However, after lots of changes in her work patterns, the complainant was eventually made redundant from her supervisor position with the respondent on 26 July 2009, although she continues in the employment of the respondent as an operative. I am therefore satisfied that the entire issue of the complainant's grade and position with the respondent constitutes a chain of events pursuant to Gillen, of which her redundancy from the higher grade is the last event, that this complaint was made in time, and that I have therefore jurisdiction to investigate whether these events constitute discriminatory conduct on the ground of race.
4.12. According to the complainant, she knew that the supervisor position would be only part-time, but insists that her manager promised her enough hours to ensure no reduction in her income. The complainant stated in her evidence that her manager felt she should not work as a cleaner at the same hospital location where she would be supervising staff. The complainant felt she could have worked as a cleaner on a different shift than the staff she was supervising. She was also offered holiday cover for other supervisors which would have amounted to 20 weeks per year, but was unable to avail of this offer because she was also working as a childminder. When her childminding job ended, she approached the respondent again for work and was given a part-time in another hospital. On 26 July 2009, the complainant was made redundant from her supervisor position at the hospital where she had worked for the respondent since the year 2000. She continues to work as a cleaner at the alternative hospital site.
4.13. For the respondent, the complainant's supervisor, Ms M., gave evidence. She explained that the hours in the supervisor role were very small, and that she was indeed anxious that the complainant should not work as a cleaner alongside staff whom she would also supervise, so that the complainant would be effective in her capacity as supervisor. The only way that the complainant would also obtain cleaning hours to make up for her loss in income was to clean at a standalone site nearby which needed only one cleaner. Ms M. confirmed the job changes which occurred as a result of the complainant's childminding work, and the fact that the complainant continues to work for the respondent as a cleaner at the alternative hospital site. With regard to the complainant's redundancy from her supervisor role at the original hospital site, Ms M. stated that the respondent had to achieve a 10% hours reduction at the site, which necessitated making one supervisor redundant. As the complainant had the shortest service of all supervisors, having been promoted only the previous year, it was her who was made redundant.
4.14. From all of the foregoing evidence on the complainant's change in grade, I am satisfied that the complainant did obtain promotion with the respondent, and that the subsequent changes in her work patterns arose partly to accommodate her own needs, partly out of managerial considerations unconnected to race, and partly out of business necessities that the respondent had to contend with. I therefore find that the complainant has not established a prima facie case of less favourable treatment on the ground of race and that this part of her complaint must therefore fail.
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that Noonan Services Group Ltd did not discriminate against Ms Luidmila Umarova on the ground of race, pursuant to S. 6(2) of the Employment Equality Acts 1998 to 2011, in terms of harassment or promotion and re-grading.
5.2. I find that Ms Umarova's complaint that she was not provided with a contract of employment in a language she could understand is out of time pursuant to S. 77(5) of the Acts, and that I have no jurisdiction to investigate it.
28 September 2011