THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Ms Beata Milkowska (represented by Mr Dermot Sheehan, B.L., instructed by O’Hanrahan & Co., Solicitors)
Kings Laundry Ltd (represented by IBEC)
File References: EE/2011/668
Date of Issue: 3rd December 2013
Keywords: Race – harassment – indirect discrimination in conditions of employment – language policy – objective justification
1.1. The case concerns a claim by Ms Beata Milkowska that Kings Laundry Ltd discriminated against her on the ground of race contrary to Section 6(2)(h) of the Employment Equality Acts 1998 to 2011, in terms of harassment and conditions of employment.
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 2011. A submission was received from the complainant on 26 March 2012. A submission was received from the respondent on 23 May 2012. On 25 October 2013, 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 November 2013. Additional evidence was requested from the respondent at the hearing and received on 25 November 2013.
2. Summary of the Complainant’s Written Submission
2.1. The complainant is a Polish national. She submits that she commenced working for the respondent on 22 June 2009. At that time, she did not know English, but since a considerable number of Polish nationals were in the respondent’s employment at the time, she had no trouble carrying out her work.
2.2. The complainant states that in February 2011, she was called to a meeting with a manager of the respondent’s and was asked about a certificate from an English language school, addressing her competence in English. According to the complainant, a further meeting with the same manager took place in or around May or June 2011, where the complainant was told that if she did not speak English, she would be charged money for the services of an interpreter at work.
3. Summary of the Respondent’s Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all. It submits that it has a policy that English is the working language of the respondent company and the common language between all employees. It employs over 200 staff from many nationalities, including Poland, Lithuania, Latvia, Nigeria, Hungary, the Czech Republic and Ireland. It states that it has a communication policy that all employees are required to speak English without the aid of an interpreter within eleven months of starting employment, and that the complainant accepted and agreed to this policy when she signed her contract of employment.
3.2. The respondent further submits that because the language of the management team is not Polish, it is necessary for all workers whose native language is not English to speak English, in order to understand instructions.
3.3. The respondent rejects the complainant’s allegation that she was not facilitated with an interpreter when she raised an internal grievance, and that she was asked to provide her own interpreter. It states that at the grievance meeting, due to the nature of the complaint, an external interpreter was provided by the respondent. However, the respondent goes on to state that the complainant was informed that at future grievance meetings, the respondent would not be able to provide an external interpreter due to associated costs. It states that the complainant was informed that she would be entitled to bring a colleague or friend to act as interpreter at any future meetings.
3.4. The respondent further states that in June 2010, the manager Ms. A., together with the Polish employee Ms. B., carried out a review of the standard of English of all employees. A number of employees were identified as having poor English, of whom the complainant was one. These employees were spoken to individually, with an interpreter, and encouraged to take English classes to help them communicate better with management. The respondent had source a Polish English-language teacher and advertised her details on noticeboards. The complainant submitted a letter from her English teacher in July 2010, stating that she had been attending English lessons since May 2010.
3.5. In January 2011, Ms A. asked employees to confirm that their tax details are correct. At the same time, employees were asked to provide an up-to-date progress report on their English lessons. This request went out to all staff. The complainant did not submit a progress report on her English lessons to Management at this time.
3.6. On 22 June 2011, Ms A. held a meeting with the complainant, together with a fellow employee as interpreter, to address issues around the complainant working public holidays, and to follow up on previous requests for a progress reports on the complainant’s English classes. Again, the complainant did not provide a progress report on her studies. According to Ms A.’s minute from this meeting, she told the complainant that she needed to get back to learning English, as the Polish employee who acted as interpreter couldn’t fulfil this function all of the time.
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. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
4.4. The complainant did not present any evidence that she was subjected to harassment on the ground of her nationality, within the meaning of the Acts. This part of her complaint must therefore fail. It was briefly considered whether the acts complained of constituted victimisation within the meaning of the Acts; however, this was withdrawn by counsel.
4.5. The respondent’s language policy, which the complainant alleges is indirectly discriminatory for foreign workers who speak no English, forms part of its standard contract of employment. It states under the heading “Communications Policy”: “King’s Laundry has a Communication policy, that we require all our staff to be able to communicate in English without the aid of a translator within the 11 months probationary period.” It was the respondent’s evidence that the contract was handed to the complainant by a bi-lingual Polish employee, who also functioned as an interpreter for the complainant during her employment with the respondent, with the task to explain the contract terms to the complainant. The respondent stated further that its policy was to give prospective employees one week to consider and sign their contracts of employment. The complainant stated that while that co-worker did hand her the contract, she signed it on the spot, since she “really needed the job and the money”. It is clear from the complainant’s further evidence, however, that she became well aware of the respondent’s policy that workers should speak English. She stated that she was told by colleagues that whenever she saw the respondent’s Managing Director on the floor, she should make an effort to speak English.
4.6. It is common case that the complainant did not lose her job with the respondent when she could not communicate in English at the end of her probation period. In fact, the complainant was forced to go on long-term sick leave in November 2011 due to back pain, and resigned her employment with the respondent, of her own volition, in November 2013, due to her health issues.
4.7. The complainant, according to the CV she submitted with her job application for the respondent, and which was not challenged by either side in the hearing, is an educated woman. She is a college graduate in economics from the Western Polish city of Wrocław, who, when she applied to work for the respondent, already spoke good German and also some Italian. In her CV, she states that she was in the process of learning English, which is somewhat at odds with her evidence that she did not have any English when she commenced work for the respondent. When I asked her why she found it so difficult to learn English, a language that is considerably easier to learn than German, she stated that the reasons were a heavy workload, lack of time, and the fact the English didn’t come easy to her.
4.8. She further elaborated on this in her direct evidence, and stated while she did attend some lessons with the Polish-speaking English teacher whose details the respondent had provided on the staff noticeboard, she stopped going when her shifts were extended to 12 hours, from 2pm to 2am. Previously, shifts would start at 3pm or 4pm and last until 2am. She further stated that on the minimum wage, she found it difficult to pay for lessons. She earned €280 per week, net of tax, when her shifts were normal hours, and €360 per week when she worked 12-hour shifts. The recommended teacher charged €20 for one hour of lessons. One problem in terms of access to English language tuition, which the respondent also confirmed, was accessing a teacher who could schedule lessons around the respondent’s shift schedule, which ruled out attendance at many low-cost night class offerings. While the complainant stated that she was now learning English, she was still communicating through an interpreter at the hearing of the complaint.
4.9. From all of the above, I am willing to accept that the respondent’s language policy caused the complainant, and other staff of the respondent who had no English, a particular disadvantage within the meaning of S. 31 of the Acts, in that the other terms and conditions of her employment, including her shift pattern, her pay, and the exhaustion coming with long hours of physical labour, meant that it was a condition of her contract of employment that was particularly difficult to fulfil. The complainant has therefore established a prima facie case of indirect discrimination on the ground of race, and the burden of proof shifts to the respondent to demonstrate that the policy was justified by a legitimate aim, and that the means of achieving that aim were appropriate and necessary.
4.10. The reasons offered by the respondent for the language policy can be summarised under three headings: Team coherence, smooth workflows, which are not guaranteed when a bi-lingual worker has to be pulled from their own job incessantly to interpret for co-workers, and related to that, the need for management to communicate directly with each worker. An additional problem arose, from the perspective of the respondent’s Managing Director, that there was no way for management to know whether work colleagues interpreted communications correctly. With regard to team coherence, the Managing Director stated that about 30% of the respondent’s work force is Polish, but also includes Hungarian, Slowak, Russian, Latvian, Lithuanian, Nigerian, French and Irish workers. Many of these workers feel left out if the communications around them are in Polish. According to the Managing Director, this has remained a persistent problem and is one of the standing complaints brought to the Multicultural Committee, a worker representative group which the respondent established after the complainant left on her sick leave.
4.11. He further stated that all instructions by team leaders and supervisors were in English, and that the computerised interfaces of the machinery were also in English. While it would be possible to re-set those in Polish, it cannot be done on an ad-hoc basis, and if these were set to Polish, other staff could not operate them. Furthermore, while the main Health and Safety statement of the company is translated into other languages, minor health and safety instructions frequently arise which need to be understood by all staff, and these are communicated in English.
4.12. From all of the above, I am satisfied that the respondent’s aim in making its language policy part of its employment contract, is justified by the operational needs of the respondent’s business, in terms of workflow, supervision and health and safety. The next question which arises is whether the means of achieving this aim were appropriate and necessary.
4.13. The respondent stated that it did not require any particular fluency in English, only an ability to communicate to the extent that the operational aims set out above could be met. It was further stated that the policy was operated on the level of encouraging staff to speak English, rather than rigidly force them to do so. The respondent was not in a position financially to pay for English lessons for staff, or to pay for outside, professional interpreters for any length of time.
4.14. As noted, the complainant did not fail her probation for not speaking English on the job, or for not studying English. The complainant was also never formally disciplined for not doing so, although she had two meetings with one of the respondent’s managers in which, she alleges, she was shouted at. However, she gave no examples of how she was allegedly shouted at, and the relevant manager was not available to give evidence. Accordingly, I am treating this part of the complainant’s evidence with some caution. The Managing Director gave evidence that the two meetings, some months apart, were called after it had been observed that the complainant made no effort to speak English at work.
4.15. However, when the complainant brought a complaint against her supervisor, the respondent paid for an outside interpreter to take her evidence. That was in October 2011. The investigation into that complaint was never completed because the complainant left on long-term sick leave shortly after that interview. The respondent strenuously denied that it requested of the complainant that she pay for her own interpreter for the remainder of the investigation, and said she could bring any bilingual friend to interpret for her. The complainant did not challenge this except to say that she did not have such a friend she would have trusted sufficiently to interpret for her in that context.
4.16. Counsel for the complainant raised the point repeatedly that it was only after about two years on the job that the topic of her lack of English language skills was raised with the complainant. The respondent stated that the workers’ language skills became an issue in 2011 because the company was growing at that time, and issues of team coherence became more pressing. I do not think that the respondent can be criticised for raising the issue of her English skills with the complainant after two years on the job, and two years of living in Ireland. On the contrary, it would open itself much more to criticism if it had harangued the complainant about this issue more or less from the start, without giving her time to settle in and start gaining some skills.
4.17. In total, I find that the manner in which the respondent implements its policy to be within the bounds of appropriateness and necessity. Staff are not punished, formally disciplined, or have their employment terminated for not following the policy. Efforts are made to source English language instruction that is offered at times convenient to the shift pattern. Interpreters are provided for serious grievances. At the same time, it is reasonable to have some degree of monitoring of the language proficiency of workers who are foreign nationals, and to raise the lack of same with them in meetings with management. Accordingly, I find that the defence set out in S. 31 of Acts avails the respondent.
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that King’s Laundry Ltd did not directly or indirectly discriminate against Ms Beata Milkowska in her terms and conditions of employment.
3 December 2013