THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 234
PARTIES
Mr Andrejs Jelisejevs
(represented by Richard Grogan & Associates)
and
Opus Designs Ltd.
File Reference: EE/2008/210
Date of Issue: 24th November 2010
Headnotes: Employment Equality Acts, 1998 & 2004, section 6, 8, 14 and 77 - Section 6(2)(h), race ground - Section 8(i)(a), conditions of employment - case also before Rights Commissioner - contract of employment - language likely to be understood - reasonable efforts
1. Dispute
1.1. This case concerns a complaint by Mr. Andrejs Jelisejevs (hereinafter referred to as "the complainant") that he was discriminated against by Opus Designs Ltd. (hereinafter referred to as "the respondent") on the grounds of race (with respect to his nationality) contrary to section 6(2)(h) of the Employment Equality Acts in relation to conditions of employment contrary to section 8(1)(b) of the Acts.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on 4th April 2008 alleging that the respondent had discriminated against him on the ground of race (with respect to his nationality).
2.2 On the 3rd September, 2010, in accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Gary O'Doherty, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2008, on which date my investigation commenced. Written submissions were received from both parties. A hearing of the complaint was held on Wednesday, 15th September, 2010.
3. Summary of the Complainant's case
3.1. The complainant is a Latvian national who submitted that he was employed by the respondent as a general operative from 7th August, 2007 until 18th January, 2008.
3.2. The complainant submitted that he did not receive a written contract of employment or notice of particulars under Section 3 of the Terms of Employment (Information) Act. He submitted in his written submissions prior to the hearing that the respondent did provide a copy of a document which states that he read a copy of the terms and conditions of employment but denied that these documents were ever furnished to him. However, at the hearing, he stated that he was given the contract of employment by Mr A, who was present at the hearing. He said that the respondent gave the contract to him to read through over a weekend and to return on the following Monday. He stated that he thought this document contained information regarding health and safety. He said that Mr A told him to run through it and sign it. He stated that he was never given a copy of that document, though he was not told he could not take a copy himself. He said that Mr A did not ask if he had a difficulty in understanding it. He stated that the Irish workers working there would have understood the contract. He said that he read the document but did not understand a few things in it. He stated that it would have been better if he had been given the contract in his own language.
3.3. The complainant stated that when he received the contract of employment his level of English was not good, although he agreed that, in the course of his employment with the respondent, that he had assisted in interpreting "basic things" with a particular employee. He said he had worked in a DIY retail store previous to his employment with the respondent, but only in a particular part. He said that, though he had sometimes dealt with customers, his main job was moving stuff from the warehouse to the store centre. However, he said that he obtained English language qualifications only after he left the respondent's employ (i.e. his English has improved considerably since) and indicated that his level of English had improved considerably since the time he worked with the respondent.
3.4. In any event, the complainant submitted that under the Equality Officers decision in 58 named Complainants -v- Goode Concrete , there is an obligation on an employer to provide a Contract of Employment in a language likely to be understood by the Complainant but that the respondent did not provide him with any contract of employment. He submitted that a foreign national who does not receive a contract of employment is in a particularly vulnerable position. He accepts that the respondent was only obliged to supply a notification of particulars as set out in Section 3 of the Terms of Employment (Information) Act but that these are particularly relevant for the complainant in that it would set out the name and address of the employer and other important rights relating to the employment. He contended that following the decision of the Labour Court in Campbell Catering Ltd and Aderonke Rasaq there would be a requirement to take special measures to advise a foreign national of their employment rights and this would include as a minimum providing them with a notification under Section 3.
3.5. The complainant also submitted that he did not receive health and safety documentation. He submitted that this is required under the Safety Health and Work Act and, it is submitted, as a result of the decision in Goode Concrete. As a foreign national not conversant in Irish Health and Safety Law, the complainant submitted that there is an obligation on the part of the respondent to provide him with a Health and Safety statement in a language likely to be understood by him and the failure to do so amounts to discrimination. The complainant submits that a notional Irish comparator would have received such a statement.
3.6. The complainant stated that he considered it was the employee's obligation to ensure that he understood the documents in question. He stated that he did not have sufficient English to have done so. He said there was no onus on him as an employee to raise questions as to whether or not he understood the documents in question.
3.7. At the hearing, the complainant withdrew a number of allegations in relation to conditions of employment and dismissal
4. Summary of the Respondent's case
4.1. Mr A stated at the hearing that the contract of employment provided to all its employees was in two parts. He said that one part was a document which was to be returned to the respondent signed by the relevant employee to say the contract had been read, understood and agreed to. The respondent provided a copy of a sample of this document which it submitted had been signed by the complainant. Mr A stated that the other part was retained by the particular employee, and he denied that he requested this part back from the complainant. He stated that he goes through the contract of employment with each and every employee and he considered that he would have gone through the contract with the complainant step-by-step, but could not say for certain.
4.2. The respondent stated that the complainant had very good English to the extent that it had asked him to interpret for it in internal communications with other members of staff. It said it had also talked to him about translating documents for the respondent, though he never actually did so in the end. It said that Mr A had no reason to think that the complainant would not have understood the contract of employment or health and safety documentation. In that respect, it questioned the complainant's submission outlined in par. 3.6 above, stating that it was not possible to understand something unless you asked about it. The respondent added that it considered that the contract was not difficult to understand and that there was no reason or excuse why the complainant could not have raised issues with the respondent in that respect. Indeed, it stated that the complainant had previously worked on the shop floor for a named DIY retail store. It stated that you could not have worked there unless you at least understood written instructions. In short, it stated that the complainant had extremely good English and had never raised a query in circumstances where he was well able to do so.
4.3. In any event, the respondent disputes that it did not ask if the complainant understood the document. It said that the complainant was dealt with in the same way as everyone else in this respect as well as in relation to health and safety training. It submitted that the complainant was given Health and Safety training when he started with it and he had signed two documents to say he had received this training. It stated that at no stage did the complainant ask a question about the terms of his employment or about his health and safety training. The respondent stated that it had 36 employees in total at the time, of whom approximately 10 were non-Irish. It submitted that its procedures were identical for both category of workers.
4.4. The respondent submitted that, in any event, the matter as to whether there was a contract of employment or not was already adjudicated upon by the Rights Commissioners by way of a settlement.
4.5. The respondent also made submissions in relation to the matters which were withdrawn by the complainant at the hearing.
5. Conclusions of the Equality Officer
5.1. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. 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. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
5.2. The respondent raised a preliminary legal issue in that the question of whether a contract of employment had been provided or not had been dealt with under the jurisdiction of the Rights Commissioners. It argued that, consequently, the Tribunal had no jurisdiction in the matter. However, the aspects of the case that were dealt with in the relevant settlement agreement related to a different legislative instrument, i.e. the Terms of Employment (Information) Act, and the taking of a case under that Act does not preclude proceedings under the Employment Equality Acts. Therefore, I have jurisdiction to consider all matters raised in that context.
5.3. The question to be answered in relation to this case is whether or not the complainant was treated less favourably than someone of a different nationality in relation to the provision of a contract of employment and/or a health and safety statement. The complainant agreed with the respondent that he had been given a copy of the contract of employment to read and that he had signed a document whereby he stated that he had read the contract. The complainant submits, however, that he returned the copy of the contract, whereas the respondent stated that he was allowed to keep it and did so. I find the evidence of the respondent to be more credible in this respect, particularly as the documentary evidence presented to the Tribunal corroborates most of its evidence, and given that the complainant's own submission was contradicted completely by his statement at the hearing in this respect. I am satisfied that the complainant did receive and was allowed to retain a copy of his contract of employment. I am also satisfied that he was given and read a copy of the health and safety statement.
5.4. Nonetheless, the complainant submits that the respondent was required to provide the complainant with a contract of employment and health and safety statement in a language likely to be understood by him as a result of the decision of this Tribunal in the Goode Concrete case. Furthermore, he states that this decision supports his view that the onus is on the respondent to ensure that the complainant understands these documents and that there was no onus on him to say anything if he had a difficulty with the documents in question.
5.5. In Campbell Catering Ltd and Aderonke Rasaq the Labour Court stated that "It is clear that many non-national workers encounter special difficulties in employment arising from a lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture. In the case of disciplinary proceedings, employers have a positive duty to ensure that all workers fully understand what is alleged against them, the gravity of the alleged misconduct and their right to mount a full defence, including the right to representation". It was in that context that the Equality Officer stated in Goode Concrete that "It could be argued that there is an onus on the respondent to provide its non-national employees with Contracts of Employment which are in a language which is understandable to them." This is the basis of the complainants submission as outlined at 5.4 above.
5.6. However, before proceeding any further, it is important to note the context of the Goode Concrete case and what the Equality Officer ultimately decided. Because they did not understand their employment rights as outlined in the contract of employment, it was found that the complainants in Goode Concrete were treated less favourably than someone who had a good command of English as such a comparator, notional or otherwise, would automatically be made aware of their rights because they understood the language and were provided with the information in that language. In that context, it is notable that the Tribunal went on to make an order to "put in place clear procedures for ensuring that non-national employees are clear as to their terms and conditions of employment and also understand all safety documentation" rather than specifying that the contract of employment and/or health and safety statement should be provided in those employees native language, or any other language for that matter. In short, the onus on the respondent in the Goode Concrete case was to make reasonable efforts to ensure that the relevant employee understood their rights and certainly that it ensured that they were not treated less favourably than someone who was made aware of those rights if they did not.
5.7. In the present case, in the first instance, I am satisfied that the complainants command of English was sufficient to have understood the contract that was presented to him, as well as the health and safety documentation. Given his submission that his English has improved considerably in the meantime, it is important to note that I have not drawn this conclusion based solely on my observation of the complainant at the hearing. I am satisfied from the evidence of both parties that his English at the time was more than satisfactory, and certainly sufficient enough to have understood documents that were in relatively straight forward English, even if they were lengthy.
5.8. In the second instance, and in any event, I find that the respondent asked the complainant if he understood the contents of the documents in question. I am satisfied that the complainant said that he did, and said that he had no difficulties with them.
5.9. It is clear that it is only in cases where a particular employee's terms and conditions (including health and safety issues) and/or general employment rights are initially provided or explained to them in a language they do not understand (invariably English) that the issue arises with regard to these terms and conditions being explained to them in a different language, and one likely to be understood by that employee. As outlined in the Goode Concrete decision, there may be an onus on an employer to establish procedures to ensure that these conditions and rights are understood by the relevant employee. Where these procedures rely upon the respondent making an assessment of whether the initial explanation or documentation outlining these matters had been understood by that employee, as in the present case, the respondent can only be required to make reasonable efforts to make such an assessment.
5.10. In this context, I am satisfied that the efforts taken by the present respondent with respect to the complainant, as outlined in par. 5.8 above, were perfectly reasonable. Furthermore, I am satisfied that it was entitled to rely upon the complainant's statement that he had understood the terms and conditions as explained to him in English, and that it had satisfied any obligation on it arising from the principles outlined in Goode Concrete in this respect.
5.11. Therefore, I find that the complainant was provided with the relevant documentation, and was not treated less favourably in that respect. I find that the fact that the documentation was only provided to the complainant in the English language does not, in all the circumstances of the present case, lead to a presumption of less favourable treatment on the race ground (on the basis of nationality). As there is no other aspect to the complainant's case, I find that he has failed to establish a prima facie case of discrimination on this basis and his case fails.
6. Decision
6.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008:
6.2. I find that the complainant has failed to establish a prima facie case that the respondent discriminated against him on the race ground pursuant to section 6(2)(h) of the Acts in terms of conditions of employment contrary to s.8(1)(a) of the Acts
6.3. Accordingly, the complainant's case fails.
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Gary O'Doherty
Equality Officer
24th November 2010