FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : LAKE REGION MEDICAL LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MONIKA STACHON (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Haugh Employer Member: Ms Connolly Worker Member: Mr Hall |
1. Appeal of Adjudication Officer Decision No: ADJ-00001853 CA-00002354-002.
BACKGROUND:
2. The complainant appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2011. A Labour Court hearing took place on 23 November 2017. The following is the Determination of the Court:
DETERMINATION:
Background to the Appeal
This is Ms Stachon’s (“the Complainant”) appeal from a decision of an Adjudication Officer (ADJ-00001835, dated 5 January 2017) under the Employment Equality Act 1998 (“the Act”). The Adjudication Officer held that the Complainant’s claim was not well-founded. The Notice of Appeal was received by the Court on 27 January 2017. The Court heard the appeal in Wexford on 23 November 2017. The Complainant was represented by Mr Richard Grogan, Solicitor; Lake Region Medical Limited (“the Respondent”) by IBEC.
The Complainant is a Polish national. She commenced employment with the Respondent on 30 March 2007 as a general operative. She earns approximately €450.00 per week. The Respondent employs approximately 890 employees at its facility in New Ross, Co. Wexford. The cohort of employees employed there is racially very diverse with staff being drawn from some fourteen different nationalities, ten of whose native language is a language other than English.
There is no factual dispute about the events giving rise to the complaint and appeal under the Act. Those events can, therefore, be recited succinctly. On 16 October 2015, the Complainant was working on a named production line with five colleagues. The Complainant was overheard by a supervisor conversing in Polish with a fellow Polish national who was working alongside her. The other staff working in that location at that time are not Polish speaking.
The supervisor invited both the Complainant and her colleague to a separate room and instructed them to speak in English when working on a line with colleagues of other nationalities as this was the established practice in the company. The supervisor explained that it was permissible for colleagues to speak their native language to one another while working if the native language of all colleagues working on a line simultaneously is the same; otherwise, the common language which should be used is English.
The Complaint took the matter up with her manager later that same day. The manager confirmed that the Respondent’s policy was as outlined by the supervisor. He also explained that the rationale for the policy was to ensure that nobody felt excluded. The manager also stated that the Respondent did not have a difficulty with employees speaking their native language with one another while on rest breaks.
The Complainant’s case is that the Respondent has not advanced a “business reason” to justify the policy referred to above and that the application of the policy in all the circumstances on 16 October 2015 to her and her compatriot amounts to indirect discrimination on the grounds of race and nationality.
The Respondent submits that a diversity workshop was conducted in May 2013 and that guidelines on the use of native languages were developed at that time and thereafter communicated to all employees by their respective supervisors via weekly briefings, noticeboards and on an LCD screen in the canteen. The Respondent exhibited an example of such a notice which clearly stated: “It is important to remember that the purpose of these guidelines is to ensure that no employee, regardless of their nationality is left to feel isolated. We each have a responsibility to be aware of the people around us to ensure that they are not excluded.” The remainder of the notice that was exhibited comprised a series of Questions and Answers in relation to the use/non-use of languages other than English in different circumstances that can arise in the workplace.
The Complainant submits that the Respondent has failed to produce any written confirmation that she attended the diversity workshop in May 2013. However, the Court notes that the Complainant did not deny that such a workshop was conducted. Neither did she deny knowledge of the poster that was exhibited as part of the Respondent’s submission or of its contents.
Indirect Discrimination
The claim advance on behalf of the Complainant in the within appeal is that she was indirectly discriminated against. Indirect discrimination arises where an apparently neutral provision criterion or practice (“a PCP”) puts persons having a protected characteristic at a particular disadvantage.
In testing if indirect discrimination has occurred it is convenient to first identify the PCP giving rise to the disadvantage contended for. In this case, it would appear that the Complainant can only be suggesting that the Respondent’s language policy places Polish nationals at a particular disadvantage vis-�-vis native English speakers. However, the ingredients of the claim were not, by any means clearly or fully articulated by her representative.
In order to test that question, it is necessary to construct two groups for comparison purposes, comprising, on the one hand, those whose native language is Polish (‘the disadvantaged group’) and those whose native language is English (‘the advantaged group’). It is then necessary to establish if the disadvantaged group comprises significantly more people who are unable to comply with the PCP than the advantaged group. This is the approach adopted by the UK courts (see for example,Rutherford v Secretary of State for Trade and Industry[2006] IRLR 551 (H.L.) and [2004] IRLR 892 (C.A)). This approach was also adopted by this Court in Determination EDA072, PSEU v Minister for Finance and CPSU. That decision was appealed to the High Court and was upheld by O’Keeffe J, reported asNeil King and Ors v Minister for Finance and Ors[2010] IEHC 307.
It is a defence to a claim of indirect discrimination to show that the impugned PCP is objectively justified on grounds unrelated to the protected characteristic in issue.
Burden of Proof
The initial burden of proof in a claim of direct or indirect discrimination contrary to the Act rests on the Complainant. Section 85A(1) of the Employment Equality Act 1998 provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:
- “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”
- “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 these 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.”
- “The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The 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 entails 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 a prima facie case. 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.”
The Court is of the view that the Complainant in the within appeal has failed to make out aprima faciecase of indirect discrimination on the race/nationality ground arising from the Respondent’s operation of its language policy. Accordingly, the appeal fails and the decision of the Adjudication Officer is upheld..
The Court so determines.
Signed on behalf of the Labour Court
Alan Haugh
29 November 2017______________________
JDDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.