THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC – E2015 – 047
Ms Roksana Zdzalik and Ms Adrianna Rospenda (represented by Rostra Solicitors)
Helsinn Birex Pharmaceuticals Ltd. (represented by IBEC)
File References: EE/2013/474
Date of Issue: 20th July 2015
Keywords: language policy – conditions of employment – discrimination – race – policy too zealously enforced – discriminatory constructive dismissal – no prima facie case.
1.1. The case concerns two claims by Ms Zdzalik and Ms Rospenda that Helsinn Birex Pharmaceuticals Ltd discriminated against them on the ground of race contrary to Section 6(2)(X) of the Employment Equality Acts 1998 to 2011, in terms of conditions of employment, harassment, discriminatory dismissal, victimisatory dismissal and other discriminatory conduct.
1.2. The complainants referred a complaint each under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 13 September 2013. A submission was received from the complainant on 4 March 2014. A submission was received from the respondent on 19 May 2014. On 24 June 2015, 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 29 June 2015.
2. Summary of the Complainants’ Written Submission
2.1. The complainants submit that they worked for the respondent as general operatives. Ms Zdzalik started to work for the respondent on 27 February 2006 and Ms Rospenda on 15 October 2007. They both resigned their positions on 14 June 2013 under circumstances which they claim amount to constructive dismissal.
2.2. The complainants state that they, and other Polish workers, were engaged in mundane and repetitive tasks on the respondent’s production line. They talked to each other in Polish while working, making mostly small talk. The complainants contend that the Polish workers were a “visible and significant” part of the respondent’s workforce on the production floor.
2.3. The gist of the complainant’s complaint is that their manager forbade them to speak Polish to each other, regardless of the fact that workers of other nationalities could have conversations in their native language, and that Polish workers in other parts of the company, for example the laboratory, were permitted to talk to each other in Polish.
2.4. The complainants state that over time, management started to interrupt their conversations and threatened them with disciplinary sanctions if they did not stop to speak Polish. The complainants made a written complaint about this on 19 October 2012. They state that while the manager in question met with them, they never received a written response, despite asking for one, by letter, on 14 December 2012. On 29 April 2013, the complainants sent another written grievance, in which they listed in detail a number of instances where they were prohibited to speak Polish and other inappropriate actions by management. The respondent replied by letter dated 2 May 2013. In this response, the respondent did not deal with the complainants’ grievances, but rather set out the rationale for the prohibition to speak any language other than English.
2.5. Both complainants resigned from their employment on 14 June 2013. They eventually received a written response to their grievances on 19 July 2013, but contend that their grievances were not properly investigated. The complainants also contend that the company policy did not exist at the time of the response. They further contend that it was never promulgated and was not in effect in other parts of the premises, and was in fact only a tool and device to justify the behaviour of their manager.
3. Summary of the Respondent’s Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all. It states that it is a small, privately owned pharmaceutical group with headquarters in Lugano, Switzerland. It has had production facilities in Mulhuddart, Co. Dublin, since 1997. It employs about 180 staff in total. In its Mulhuddart facility, it employs 60 staff, of which 43 are Irish, 11 Polish, three Lithuanian, two Italian and one Romanian.
3.2. With regard to the case on hand, it submits that both complainants were assessed with regard to their ability to speak English prior to being hired, which should have alerted the complainants to the requirement of speaking English in the workplace. The respondent further states that no issue was ever raised by the complainants from the start of their employment in 2006 until 2012. According to the respondent’s language policy, English must be spoken while at work and in any of the production areas, whereas staff are free to use their natives languages during break times, as long as other workers are not feeling excluded.
3.3. The respondent states that in October 2012, the Production Manager, Mr W., received a letter signed “Polish staff”, which contained a complaint about speaking Polish in the workplace. A meeting was held between Mr W., the Production Supervisor, Mr. K., and the staff concerned. Mr W. outlined the company position as summarised in the preceding paragraph.
3.4. In November 2012, a company briefing was held with all staff in which the language policy was outlined to staff and it was reiterated that English was the business language to be spoken when in the workplace, but not during breaks and in places like the canteen. The respondent further states in its submission that this is not a formal, written policy, but describes it as “well established through custom and practice in the company”. It also states in its submission that there had been no need to promulgate the policy prior to the grievances raised by the complainants because it had never been an issue before.
3.5. In December 2012, the complainants wrote another letter to Mr W. and the HR manager, Mr. H., again complaining about not being allowed to speak Polish. A meeting was held with Mr W., Mr H., Ms Rospenda and another colleague (with Ms Zdzalik being unable to attend), in which the language policy was outlined again and Mr W. gave the reasons for the policy, these being especially the manufacturing procedures the respondent is required to observe in terms of the regulatory environment it operates in. The workers were referred to the company grievance procedure, with the possibility of an appeal to the plant’s senior Director, Dr H.
3.6. The complainants utilised the grievance procedure in April 2013, and escalated their grievance to Dr H. on 13 May 2013. Dr H. met with the complainants on 28 May 2013 and thereafter began her investigation. According to the respondent, the complainants appeared very satisfied with the prospect of an investigation by the senior Director. The respondent also notes in its submission that during that meeting, the complainants affirmed that they had no problem with the fact that operations in the company are conducted through English.
3.7. One day later, both complainants submitted their resignations in writing. They had been offered alternative positions in another company and wished to commence employment within one week. The notice period contained in their contracts of employment was four weeks. For operational reasons, the company could not facilitate them and a notice period of three weeks, with an finishing date on 14 June 2013, was mutually agreed.
3.8. Both complainants proceeded to go on sick leave following this meeting, submitting medical certs for the period from 7 to 17 June 2013. The respondent tried unsuccessfully to contact them. Their employment came to an end during their sick absence.
3.9. Dr H. concluded her investigation on 19 July 2013. Her investigation failed to uphold the grievance.
4. Conclusions of the Equality Officer
4.1. The issue for decision in this case is whether the complainant was discriminatorily dismissed 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.
Use of Polish in the Workplace
4.4. In terms of whether to conceive of the dispute between the parties about the complainants’ use of Polish in the workplace, i.e. in the gowning room and on the production floor, as harassment within the meaning of the Acts, or as a matter of their terms and conditions of employment in the wider sense, I prefer the latter, as will become clear from the following summary of the facts:
4.5. In both its written and oral evidence, the respondent reiterated that all its documentation, including regulatory documentation, all business processes, and all standard operating procedures are in English. Mr W. also highlighted in his oral evidence that regulators can visit the company at any time and that any production floor operative can be asked any question by a regulator at any time. It is therefore essential that production operatives are trained in standard operating procedures in English, and proficiency in English is important for clarity of communication. It must, however, be noted that this approach was only semi-formalised and promulgated after consultation with IBEC and in the wake of the complainants’ complaints. Both Mr W. and the HR Manager, Mr H., were quite clear in their evidence on this point.
4.6. The complainants, in their evidence, did not dispute the necessity to communicate about business processes and with supervisors in English, and to be proficient in English. However, the situations which they described in which they were reprimanded for speaking Polish did not arise in these contexts. They described these as conversations in the gowning room when they got ready for their shift, chatting on the production floor at the end of a shift when the line had been switched off, and chit-chat while they were sitting next to each other on the production line, packaging pharmaceuticals.
4.7. It must be noted that the complainants were never formally disciplined for speaking Polish to each other, although both of them asserted that their immediate supervisor threatened such steps to them many times. Effectively, the discipline carried out against the complainants remained on the level of verbal counselling, but according to both complainants, it was constant and also arose in situations where no other workers were around except two Polish employees exchanging a short sentence in Polish and the intervening supervisor. Given that both complainants had worked for the respondent for several years to the respondent’s satisfaction, it appears that this issue escalated when specific supervisors started applying particular zeal to this question in 2012. These supervisors were not called as witnesses by the respondent; accordingly, I treat the complainants’ evidence on this point as uncontested. In terms of colleagues being left out by the use of Polish, it is also important to note that Ms Zdzalik also stated that she was asked “many times” by her non-Polish speaking colleagues to please speak English. This, however, was not a rationale put forward by the respondent, who simply insisted on the implementation of their language policy as formulated, i.e. no use of languages other than English during work time.
4.8. Employers generally have a great deal of leeway in setting language policies which meet their needs for both operational reasons and those of workforce integration. That said, I find it impossible to link the valid operational objectives which underpin the respondent’s overall language policy with the kind of situations in which the complainants were constantly admonished for using their native language. I accept the complainants’ evidence that their use of Polish was for small talk at the beginning and end of a working day and during long hours of repetitive packaging work. An Irish person whose native language is English would not run the same risk of discipline, albeit at a low level, for the same small talk while being engaged in what was generally agreed was repetitive, boring, packaging work. While it does appear from Ms Zdzalik’s evidence that her Irish co-workers felt left out by the use of Polish, it was, as I noted in the preceding paragraph, the company’s position that the use of English is mandatory in any part of the production facilities, including places like the gowning room, and that workforce integration issues did not apply.
4.9. I find such a zealous interpretation of an overall sensible policy not sustainable. In my view, it does lead to less favourable treatment of any worker whose native language is not English, and I find that the complainants were indeed less favourably treated than English-speaking Irish workers in the same situation, in terms of the discipline they had to endure from their immediate supervisors. As noted above, I am of the opinion that this constitutes less favourable treatment in their conditions of employment rather than harassment within the meaning of the Acts. Discipline by way of verbal counselling can only be harassment if it contains clear references to a protected ground. The complainants did not put any such detail in evidence. Therefore I view this as unequal application of discipline, in that only non-native speakers of English could even be in a position to be disciplined for normal small-talk situations which workers who conducted the same small-talk in English would not be disciplined for. The complainants are therefore entitled to succeed in this part of their complaints. My suggestion to the respondent would be to amend their policy to the effect that a degree of small talk in the production facilities, before work starts and after it is finished, is allowed unless other workers feel excluded.
Discriminatory (or victimisatory) Constructive Dismissal
4.10. The complainants contend that their resignations, and the end of their employment with the respondent on 14 June 2013 constitutes constructive dismissal, either discriminatory or victimisatory. In light of the circumstances which surround their resignations, I cannot find this to be the case. The respondent’s HR manager gave cogent evidence on how he was contacted by the HR manager of another pharmaceutical company for a reference for both complainants, on the same day as their meeting with Dr H. In the course of the conversation, it became clear that on a day on which they had both been out on sick leave, they had interviewed with the competitor company. They then resigned one day after meeting Dr. H., and went on sick leave when their notice period could not be facilitated. Apart from not showing the complainants in a very positive light, this behaviour also violates the most important condition for a resignation to count as constructive dismissal, namely the obligation on the worker to give the employer an opportunity to respond to their grievance.
4.11. The Labour Court, in the case An Employer v. A Worker (Mr O)(No. 2) [EED0410], has addressed the issue of constructive dismissal under the Acts comprehensively. It set out the main applicable tests, these being the “contract” test and the “reasonableness” test, and held that these tests may be used either in combination or in the alternative. I find that in the case on hand, the reasonableness test is the relevant one. This test asks whether the employer conducts its affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer. What can be regarded as reasonable or unreasonable depends on the circumstances of each case. However, it is an important element of the reasonableness test that the employer has an opportunity to address an employee’s grievance or complaint.
4.12. In the case on hand, it would have been impossible for Dr H. to conduct the investigation she had agreed to within a day, and clearly, the complainants’ intention to leave the respondent’s employment even pre-dates the meeting with Dr H. Accordingly, their cases for constructive dismissal, whether discriminatory or victimisatory, must fail.
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that Helsinn Birex Pharmaceuticals discriminated against Ms Roksana Zdzalik and Ms Adrianna Rospenda in their conditions of employment, on the ground of their nationality, contrary to S. 8(1) of the Employment Equality Acts 1998 to 2011. The respondent did not discriminatorily or victimisatorily dismiss either complainant.
5.2. In accordance with Section 82 of the Acts, I hereby order that the respondent pay each complainant €1,500 in compensation for the effects of the discrimination. The award is not in the nature of pay and therefore not subject to tax.
20 July 2015