INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011
MICROSEMI IRELAND LTD
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
ALEKSANDRA STAWARZ, DOMINIK ANDVZEJECZAK, ALEKSANDRA JARMAKOWSKA, PATRYK POLIKARCZUK & CEZARY NAGUSZEWSKI
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Ms Jenkinson
Employer Member: Ms Cryan
Worker Member: Mr McCarthy
1. Appeal Under Section 83 Of The Employment Equality Acts, 1998 To 2011
2. The Workers appealed the decision of the Equality Officer to the Labour Court on the 18th September, 2013. A Labour Court hearing took place on the 30th March, 2015. The following is the Court's Determination:
This is an appeal by the Union on behalf of Ms. Aleksandra Jarmackowska, Mr Patryk Polikarczuk, Mr Cezary Naguszejewski, Mr Michael Stawarz and Mr Dominik Andrzejczak (“the Complainants”) against the decision of an Equality Officer in a claim against their employer Microsemi Ireland Limited (“the Respondent”) where they alleged that they were discriminated against on the grounds of race in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts 1998 –2011 (hereafter the Acts).
The Equality Officer’s Decision was made in respect of eight named Complainants, however, three Complainants were not party to the appeal before the Court.
The complaint was referred under the Acts the to the Equality tribunal on 17thFebruary 2011, and the Decision was issued on 2ndAugust 2013. The Complainants are all Polish and have been employed as Production Operatives by the Respondent since 2006/2007.
Summary of the Complainants’ Case
The substance of the Complainants’ case is that they were discriminated against by the Respondent as they are not native speakers of English. They claimed that the Respondent imposed a rigid regulation that English only should be allowed on the factory floor and also that work related documentation was provided in English only. They submitted that the use of any other language was prohibited under threat of disciplinary action.
Mr Ger Kennedy, SIPTU, on behalf of the Complainants stated that they have no difficulty with the use of the English language in respect of dealings with their supervisory team, their non-Polish speaking colleagues,or for the purposes of audits, training etc. However they believe that the insistence by the employer of restricting any engagement in their native language with their fellow Polish speaking colleagues as being unnecessarily restrictive and discriminatory in nature. Furthermore, he submitted that the Respondent was not compliant with its obligation underthe Safety Health and Welfare at Work Act 2005, to ensure thatdocumentation relating to health and safety matters are in an language understandable by the worker concerned.
Mr Kennedy disputed the objective grounds put forward by the Respondent for the rule enforcing the use of English as the business language of the company. He said that none of the criteria were sufficient to prevent normal “chit chat” between the Complainants and their Polish colleagues in their native language. He submitted that the rule being imposed by the Respondent of English only in all circumstances was discriminatory particularly when it was imposed under threat of disciplinary sanctions.
Summary of the Respondent’s Position
The Respondent denied that any discrimination on grounds of nationality occurred. It stated that no disciplinary actions were ever taken against any employee for not speaking English and that the Complainants had failed to demonstrate that they were treated less favourably than a person of a different race.
Ms Maíread Crosby, Ibec, on behalf of the Respondent stated that the Respondent employs people from 15 countries. 106 employees are from 12 countries where English is not the native language. Among the 106, 82 are of Polish origin. She submitted that with such a diverse workforce, to ensure inclusion and to run the business in line with health and safety requirements and business efficiency, communication in English only is required.
Ms Crosby contended that as the Complainants were all competent in English the rule in issue did not place them at a particular disadvantage. However, without prejudice to its contention in that regard the Respondent submits that the rule was objectively justified. She stated that having one common language to ensure communication was possible was a requirement during actual working time only. With regard to the allegation regarding the production of work related documentation in English only, she referred to the fact that there were 464 individual procedures/work instructions documents and 304 of these related to the Production Department where the Complainants work.
Ms Crosby told the Court that the Complainants applied for the positions through English and all stated on their CV that they had a good command of the English language. She said that the Respondent had in place a facility for employees, paid for by the Company, whereby employees could attend English classes at the Clare Language Centre and also in-house via the English Language Institute. Four of the Complainants did not attend the classes and one Complainant completed FETAC Level 3 in English as a Second Language with a final result of 90%. A number of the Complainants had also completed other qualifications, all conducted in English and paid for by the Respondent,viz.
- •FETAC Level 5 ECDL training,
•FETAC Level 3 Management (Supervision and Leadership),
•FETAC Level 7 Professional Diploma in Management & Leadership,
•FETAC Level 5 Occupational First Aid,
•Certificate in Chemical Safety and Chemical Spill,
Ms. Crosby stated that the Respondent had an honest and well-founded belief that that the Complainants were competent in the use of the English language. She said that the Complainants demonstrated proficiency and competency in articulating answers and understanding questions in English. Operations have always been carried out through English, as it is the working language of the business and its customers and the common language among its employees. She said that throughout the course of the Complainants' employment they conducted their employment affairs through English, without difficulty. She told the Court that no grievances were ever raised by the Complainants that they did not understand the English language or that they were not comfortable using it.
Ms Crosby said that the documentation referred to was at all times "in language readily understood" by the Complainants and cited 58Named Complainants v Goode Concrete Limited,DEC-E2008-020, where the Equality Officer held that the contract of employment should have been in a language which was understandable to the complainants. Ms Crosby contended that the words "in a language which is understandable” was deliberate. She said 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 employees.
The Law Applicable:
Burden of proof
Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that 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.
In the jurisprudence of this Court the test for applying this notion is that developed inSouthern Health Board v Mitchell ELR 201. Here the Court adopted the following analysis of Article 2 of the Burden of Proof Directive, upon which Section 85A is now based: -
- The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.
It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.
1. The complainant must prove the primary facts upon which they rely in alleging discrimination,
2. The Court must evaluate those facts, if proved, and satisfy itself that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination,
3. If the complainant fails at stage 1 or 2 he or she cannot succeed. If the complainant succeeds at stages 1 and 2 the presumption of discrimination comes into play and the onus shifts to the respondent to prove, on the balance of probabilities, that there is no discrimination.
The statutory language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This involves a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish aprima faciecase. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.
Conclusions of the Court
The essence of the Complainants claim is that it was discriminatory for the Respondent to require them to speak in a language other than their native language in the course of their employment and to provide them with work related documents in English. There is no dispute that the requirement to communicate in English applies universally within the employment and to those of all nationalities.Furthermore, there was no dispute that speaking in one’s native language was permitted within the site when employees were not working, i.e. on breaks, going to and from breaks etc.
InNoonan Services v A Worker EDA1126, this Court held that a requirement to communicate 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 to communicate in English is indirectly discriminatory unless it is objectively justified.
Itis wellsettled thatapotentiallyindirectly discriminatorymeasureis objectivelyjustified ifit isin pursuanceof a legitimateobjectiveof the employer and the meanschosenare appropriateand necessaryto thatend.
The question for consideration in this case is whether in the circumstances the requirement to communicate in English placed the Complainants at a particular disadvantage relative to others whose native language is English. Those circumstances include the uncontested fact that the Complainants were capable, to varying degrees, of communicating in English. Moreover, the Court must consider the question of whether the impugned rule was objectively justified.
In considering that question the recent decision of the High Court inAn Post vMonaghan and Wade IEHC is relevant, Here, in relation to the defence of objective justification, Hedigan J pointed out that a Court must ask itself if the impugned measure is the minimum unfavourable treatment necessary to enable the employer to obtain its objective.
The objective grounds advanced by the Respondent were that the rule in issue was genuinely in pursuit of a legitimate objective, it applied to work related communications only. Having regard to the diversity of nationalities amongst its workforce a common language of communication was necessary for reasons of health and safety, business efficiency and inclusion. It submitted that communication in English was essential as it is the working language of the business and its customers and the common language among its employees. It was the language used when audits were being conducted which occurred a number of times each year. There was no dispute that the rule did not extend to social conversations outside of the shop-floor and no restrictions applied in non-work related areas.
The Court accepts that the Respondent had genuine grounds to believe that the Complainants’ had a good command of English. It had ensured both at recruitment stage and during their employment that they had every opportunity to be competent in English in order to meet the requirements to communicate in English. The Court notes that the Complainants’ complaint was related more to the restriction not to be allowed to “chit chat” in their native language than to the Respondent’s requirement to speak in English for work related matters. The Court notes that there were no restrictions on the Complainants while they were in non-work related areas during break times etc..
It seems to the Court that the Respondent’s rule requiring the use of
English as the business language of the Company so as to ensure business efficiency, maintain safety and health and provide for inclusion in respect of other nationalities was both appropriate and necessary to the achievement of the Respondent’s objective. Accordingly the Court is satisfied that the rule was objectively justified within the statutory meaning of that term.
For all of the reasons set out above, the Court finds that the Respondent did not discriminate against the Complainants on the race ground contrary to the provisions of the Act. Accordingly, the decision of the Equality Officer is upheld and the appeal is disallowed.
Signed on behalf of the Labour Court
21st April, 2015______________________
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.