The Equality Tribunal
Employment Equality Acts
Dominik Andvzejeczak, Aleksandra Komar, Karolina Sokulsko, Aleksandra Jarmakowska, Patryk Polikarczuk, Michael Stawarz, Cezary Naguszewski, & Edyta Szawj,
(Represented by SIPTU)
- V -
Microsemi Ireland Ltd.
(Represented by IBEC)
File references: EE/2011/290, EE/2011/371, EE/2011/532
EE/2011/533, EE/2011/534, EE/2011/748, EE/2011/0749 & EE/2011/750
Date of issue: 2 August 2013
Keywords - Employment Equality Acts - Discriminatory Treatment - Race
1.1 This dispute concerns a claim by the complainants that they were subjected to discriminatory treatment by the respondent on grounds of Race, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts.
1.2 The complainants referred claims of discrimination to the Director of the Equality Tribunal variously on 17 February 2011, 1 April 2011, 5 July 2011, 4 November 2011, under the Employment Equality Acts. On 23 July, 2013, in accordance with his powers under section 75 of the Acts, the Director delegated the cases to Conor Stokes - 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 a hearing on 30 July 2013. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainants submitted that they were employed by the respondent and are non-Irish nationals (being from Poland). The complainants submitted that they have experienced a number of difficulties in employment as they are not native speakers of English.
2.2 The complainants submitted that these difficulties have arisen in the context of employment mainly in relation to two particular issues. The first relates to the claim that none of the work related documentation has been provided in and that this counts as a discriminatory act. The second issue is that the respondent has imposed a rigid regulation of English only being allowed as the business language within the confines of the workplace.
2.3 The complainants submitted that the use of any other language is prohibited under threat of disciplinary action. The complainants further submitted that this policy applies to the shop floor and office areas of the plant.
2.4 The complainants submit that this rule which is set out in the company handbook prevents them from conversing in their own ethnic tongue with a number of work colleagues who are also Polish and this is discriminatory.
2.5 In addition, two of the complainants submitted that access to some promotional outlets within the organisation are restricted to individuals who are fully fluent in the English language and that this too constitutes discrimination.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent denied that they discriminated against the complainants
3.2 The respondent submitted that at the time of the submission of the complaint it employed 116 employees from 14 countries (10 countries where English is not the native language) [At the hearing these figures were updated: 304 employees from 15 nationalities of which there are 12 nationalities where English is not the native language]. The respondent submitted that in the recent past a large expansion resulted in a lot of new employees being hired. All employees receive induction training on commencement.
3.3 The respondent submitted that with such a diverse workforce, to ensure inclusion, to run the business in line with health and safety requirements, and to ensure business efficiency, it needs to have one common language to ensure communication is possible during actual working time. Accordingly, the business language is English.
3.3 The respondent submitted that the complainants were recruited through the medium of English, submitted English language CV's and were interviewed in English and that all of the complainants indicated that they had levels of English ranging from 'communicative' to 'fluent'. The respondent submitted that the documentation they produce is in a language readily understood by the complainants.
3.4 The respondent submitted that it has facilitated and paid for employees (including the majority of the complainants) to attend English classes.
3.5 The respondent submitted that no grievance was taken up with it and that the first time it became aware of this issue was through the Equality Tribunal's procedures.
3.6 The respondent submitted that in the Goode Concrete case (DEC-E2008-020) the Equality Officer stated that the contract of employment should be 'in a language which is understandable to them (the employees)'. In addition, in the Kartunaviciute case (DEC-E2008-071) the Equality Officer dismissed the complainant on the basis that she was satisfied that the complainant 'had a reasonable standard of English'. The respondent contends that there exists no obligation for information or documents to be given 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. It is the respondent's contention that the complainants all had a reasonable understanding of English based upon either their own admission, that they had undertaken English language courses, or that they had been awarded FETAC awards at levels 3 and 5 which had been delivered through English.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent subjected the complainants to discriminatory treatment on the basis of race, in terms of Sections 6 of the Employment Equality Acts, and contrary to Section 8 of those Acts.
4.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainants to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 In relation to the submission on behalf of the complainants that issuing contracts and health & safety documentation in English only amounts to discrimination per se, I am not satisfied that giving staff members whose mother tongue is not English contracts in English only or only issuing safety notices in English only can amount to discrimination in and of itself. Each case must be considered in light of the circumstances that pertain to the employment relationship in its entirety. Factors such as, but not limited to, the employee's knowledge of the language of the contract or notices, the employees knowledge of the business and the work environment, the employer's knowledge of the employee's mother tongue, the availability of translation services - both formal and informal, the size of the company in relation to the numbers of language spoken, the line management structure within the company (in terms of language competence and nationality) and the common language used within the company, all contribute to consideration of what amounts to discrimination in the circumstances of the employment relationship. In addition, whether the employer provides access to language classes should also be taken into account.
4.4 In the instant case, all of the complainants were recruited through English and all had some level of English language competence. Each complainant had indicated on their CV, when applying for employment, that they had a certain standard of English. This standard as indicated by the complainants themselves, ranged from 'communicative' to 'fluent'. In addition, the language competence demonstrated by the complainants at the hearing, when combined with the length of time they were in employment in Ireland (and with the respondent) and considering that the respondent provided and paid for English language classes or other training delivered through the medium of English for all of the complainants, does not support the contention that any of the complainants did not have a reasonable standard of English.
4.5 I note that none of the complainants raised the issue of not understanding notices or conditions of employment with the respondent prior to taking this complaint although they had been in employment for several years at that point. Therefore, I am not satisfied that the provision of conditions of service or health & safety notices in English only amounts to less favourable treatment on the race ground in respect of these complainants.
4.6 In relation to the second issue where it was submitted that the respondent had imposed a rigid regulation of English only being allowed as the business language within the confines of the workplace, a number of issues arise.
4.7 At the hearing it was agreed by all parties that the rule on the use of English only related to the shop floor and office area only and that outside of this the use of languages other than English was permitted, i.e. in the canteen, etc.
4.8 The respondent stated that under its Employee Handbook, English is identified as the business operational language and that "all employees are expected to speak only in English while carrying out work and while communication on the shop floor".
4.9 The respondent stated that the reasoning behind the use of a business language was three-fold, form a health & safety perspective, to ensure inclusion and to ensure business efficiency.
4.10 The respondent outlined that it was important for it that all employees should be able to understand the health and safety notices and instructions issued by supervisors and managers and given that it had fourteen different nationalities employed, it had to be able to ensure that instructions were understood and followed by all employees. This is particularly so where some hazardous products were being used and also where some processes were of critical importance to the output of the respondent.
4.11 The language of the business, the industry and of the auditing process is English and in order to survive in such an industry, it is important for employees to be able to work in English particularly when any employee can be requested by the auditors to explain their work and processes to the inspectors who regularly audit the process (every two to three months). From a business perspective, it was imperative that the respondent continued to receive favourable audit reports relating to its business processes and outputs.
4.12 Additionally, the respondent outlined how it had received some complaints on an informal basis of employees feeling excluded because their colleagues were communicating amongst themselves in a language other than English. Therefore it pursued this policy of a business language.
4.13 The deliberation of the Labour court in the case of Noonan Services Ltd v A Worker (EDA1126), may be useful. In that case the Court held that
On the question of the decision being tainted with race discrimination, it is clear that a requirement to have competency in English is likely to place persons whose native language is other than English at a disadvantage relative to persons whose native language is English. Hence, prima facie, a requirement of competency in English is indirectly discriminatory unless it is objectively justified. It is well settled that a potentially indirectly discriminatory measure is objectively justified if it is in pursuance of a legitimate objective of the employer and the means chosen are appropriate and necessary to that end. In this case it is not disputed that there is a need for employees working in the clean room to communicate in English with employees of the Client company and with auditors of both the FDA and IMB. There is also a serious obligation on the Respondent to ensure that adequate and proper records are maintained through the use of logbooks. Adherence to these standards undoubtedly constitutes a legitimate aim of the Respondent. It seems to the Court to be clear beyond argument that the requirement for employees to be competent in English, so as to discharge these obligations, is both appropriate and necessary to the achievement of that objective. Accordingly the Court is satisfied that the requirement of a competence in English for employment in the clean room of the plant was at all times objectively justified within the statutory and jurisprudential meaning of that term.
4.14 Although that case is somewhat different to the instant case, the approach taken by the court is instructive as to how to approach these matters. Using a similar approach, the rule requiring employees to use English in the shopfloor and office areas may be considered as indirectly discriminatory unless it is objectively justified.
4.15 In the instant case, the respondent has given three reasons to justify its policy of adhering to a business language:, from a health and safety perspective, from a business efficiency perspective and from an inclusion perspective. I am satisfied that any one of these reasons justifies the use of a business language and more so when the three reasons are taken into account. Therefore I am satisfied that this practice is objectively justified.
4.16 Additionally I note that although the respondent operates a reasonably rigid policy for the use of the business language, it has a softer approach to the enforcement of this regime. Despite being asked, none of the complainants was able to point to an occasion where they personally, or another person, was disciplined for using their native tongue, save where they were admonished by their supervisor or line manager. No further action was taken against anyone.
4.17 Two of the complainants brought up an issue that access to some promotional outlets within the organisation are restricted to individuals who are fully fluent in the English language. The complainants gave some vague detail regarding two promotional competitions. The respondent addressed this issue by indicating that the positions averred to were not restricted to individuals who are fully fluent in English but that they were given to individuals who were able to demonstrate that they had the appropriate communication skills, in relation to one position the successful candidate was and in relation to the other while the current holder was Irish, the former holder was Slovak. The complainants were not able to provide any further substantive details regarding access to promotions other than these assertions. In the circumstances, I am not satisfied that the complainants had established facts from which discrimination in this regard may be inferred and this element of the complaint fails.
5.1 Having considered all the written and oral evidence presented to me, I find that the complainants has not established a prima facie case of discriminatory treatment on the basis of documentation or signage and this element of their complaint fails.
5.2 Having considered all the written and oral evidence presented to me, I find that the complainants have established that the rule limiting the business language to English is indirectly discriminatory on the race ground but that it is objectively justified in respect of this respondent. Therefore this element of their complaint fails.
5.3 Having considered all the written and oral evidence presented to me, I find that the complainants have not established a prima facie case of discrimination in relation to access to promotion and that this element of their complaint fails.
2 August 2013