THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998 to 2008
Decision DEC - E2011 - 013
PARTIES
Mr Sigitas Cituys and Ms Jurgita-Zivile Cekanaviciene
(represented by Richard Grogan & Associates)
and
IGWT Poultry Services Ltd
c/o Raymond James McCoghey Jnr
(represented by Frank Crean, B.L. instructed by
Corrigan Coyle Kennedy McCormack, solicitors)
File Reference: EE/2008/076/401/402
Date of Issue: 27th January 2011
Headnotes: Employment Equality Acts, 1998 to 2008, section 6,8, 14 and 77 - Section 6(2)(h), race - Section 8(1)(b), conditions of employment - Contract of Employment - indirect discrimination - question whether out of time - language likely to be understood - evidence of parties
1. Dispute
1.1. This case concerns a complaint by Mr. Sigitas Ciutys and Ms Jurgita Sivile-Cekanaviciene (hereinafter referred to as "the complainants") that they were discriminated against by IGWT Poultry Services Ltd. t/a Raymond James McCoghey Jnr ("the respondent") on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 ("the Acts") in relation to conditions of employment contrary to sections 8(1)(b) of the Acts.
2. Background
2.1 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 8th February, 2008 alleging that the respondent had discriminated against them on the ground of race.
2.2 On the 1st November, 2010, in accordance with his powers under section 75 of the 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 Acts, on which date my investigation commenced. Written submissions were received from both parties. A hearing of the complaint was held on 17th November, 2010.
3. Summary of the Complainant's case
3.1. The complainants are Lithuanian nationals. Mr Ciutys commenced employment with the respondent on 13th October 2006 and is still employed with it. Ms Cekanaviciene commenced employment with the respondent on 26th November 2006 and is still employed with it.
3.2. The complainants submitted that they did not receive proper contracts of employment that cover their entire period of employment. At the hearing, they stated that they did receive contracts, but did not understand them as the contracts were not provided in their own language. They 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 them. They submitted that a foreign national who does not receive a contract of employment is in a particularly vulnerable position and, following the decision of the Labour Court in Campbell Catering -v- Rasaq, there is a requirement to take special measures to advise a foreign national of their employment rights.
3.3. The complainants submitted that the provision of the contract of employment in a language they did not understand set them at a particular disadvantage vis-a-vis workers who understood English and was, therefore, indirect discrimination. They stated that they were set at a particular disadvantage because they did not understand their terms and conditions with regard to holiday pay, rates of pay, working hours and time off. Mr Ciutys said that he did not know the extent of the long hours he would be required to work with the respondent, nor about working on weekends. Ms Cekanaviciene said that Irish nationals were able to take days off when they liked. In general, the complainants stated that giving them a contract in English was akin to not giving them a contract at all. In that context, both complainants denied that their terms and conditions were explained to them in a language other than English.
3.4. Mr Ciutys said instructions were given to him in English, but they were only basic instructions. In any event, he said that he did not understand these instructions, but that everything was explained "in pictures". He denied that he ever translated for any other work colleagues. He also denied that he had spoken with the respondent in English during his performance appraisal about changes he thought could be made to work practices, as alleged by the respondent.
3.5. Both complainants were presented with a number of documents by the respondent which it stated were signed by them. These documents included two contracts of employment each, and health and safety documentation and performance appraisals. Mr Ciutys accepted that he had signed some of these documents, but stated he did not understand them. Mr Ciutys also denied signing some of the other documents, particularly one of the two contracts of employment which the respondent submitted he was provided with. Ms Cekanaviciene did not deny signing any documents, but also said she did not understand them. She also said that some of the documents were signed by her but not dated by her. In relation to questionnaires which they had completed, the complainants said they were told what to say in these documents and did so.
3.6. With regard to the respondent's submission that the complaint is out of time, the complainant submitted that the relevant contracts cover their entire period of employment. They added that the issues relating to their lack of understanding of their terms and conditions would apply on the last date of employment as much as on the first date.
3.7. The complainants also submitted that the complete lack of documentation requires the issue as to what would be the position concerning a notional comparator. They submitted that in the case of a notional comparator being an Irish national they would be aware of their entitlements to a Health and Safety statement and to a statement under Section 3 of the Terms of Employment (Information) Act.
3.8. A large number of issues relating to conditions of employment and victimisation were withdrawn at the hearing by the complainants.
4. Summary of the Respondent's case
Preliminary Jurisdictional Issue
4.1. The respondent submitted that the complaint is out of time. In that respect, it submitted that the relevant complaint form is stamped by the Tribunal as received on 8th February 2008. It submitted that if any discrimination took place, which it denied, then any such incident would have taken place on the date on which the complainant received the contracts and Mr Ciutys received and signed his original contract of employment on the 13th October 2006. Furthermore, the respondent stated that on no occasion did the complainant ever make any grievance known to it, whether formally or informally, in relation to contracts.
Substantive matters
4.2. The respondent submitted that, if the matter is in time, then whether the complainant did not receive proper contracts of employment that cover his entire period of employment is entirely misconceived and without merit. It submitted that the complainants were issued with and signed contracts of employment on the first day they started work. It submitted that, in June 2008, revised contracts of employment were issued to all employees after it had carried out a review of all aspects of its employment policy. Furthermore, the respondent submitted that, while the complainant did not receive the contracts in their first language, it submitted that they received the contract in a language they understood (i.e. English) as it submitted that both complainants have and had at all times a very good command of English and had no difficulty communicating or understanding English.
4.3. In that regard, the respondent submitted that Mr Ciutys had a sufficient level of competence in the English language to understand any workplace issue howsoever arising. It submitted that, in fact, during the course of his employment, the complainant willingly stepped into the role of de facto translator in relation to other members of staff where he would frequently translate from English into their language and vice versa. At the hearing, a Director of the respondent gave evidence in relation to the level of Mr Ciutys' English. In relation to Ms Cekanaviciene, the respondent submitted that she was the partner of Mr Ciutys and that any issues that she did not understand were translated and explained by him. It also submitted that the complainants were, without assistance, able to complete a detailed questionnaire in the English language.
4.4. In any event, the respondent submitted that there is no legal requirement on the part of the respondent to provide a contract of employment to an employee in their first language. It submitted that, to find for the complainant, the Tribunal must, in the first instance, have evidence clearly confirming the inability of the complainant to understand a reasonable level of English. It submitted that the simple fact of the complainants' nationalities and that the contracts had not been furnished to them in Lithuanian cannot constitute evidence of less favourable treatment. It submitted that the Tribunal should not simply assume, by virtue of the complainant's nationality, that they required additional assistance and therefore find the respondents to be in breach of their obligations pursuant to the Acts. It submitted that this would be an unfair procedure and an improper application of the law.
4.5. Instead, the respondent submitted that, where the complainants are clearly proficient in the English language, they are not entitled per se in Irish law to more favourable treatment in relation to contracts of employment than an Irish comparator. In the present case, it submitted that the complainants were provided with a contract of employment in English which they signed to the effect that they had read and understood them. It submitted that it had more than met its obligations in this respect.
4.6. In any event, the respondent stated that, when the contracts were presented to its employees, translators were made available to go through the contracts in the relevant employees own language. In that respect, it named the relevant Lithuanian translator who was present when the complainants were provided with this opportunity to raise issues with regard to their contracts. It stated that, while all workers received their contracts in English, it had interpreters available in-house and from outside the company who could translate any other documents or provide assistance where necessary. In that respect, it stated that, where necessary, there was another staff member who could translate for them in a language the complainants understood on a day-to-day basis.
4.7. The respondent brought a number of witnesses to the hearing to give evidence. It stated that this evidence corroborated its submissions in this respect.
4.8. The respondent expressed its dissatisfaction with the withdrawal of the matters at the hearing, as it had put a considerable amount of work into preparing for these matters.
5. Conclusions of the Equality Officer
Preliminary matter
5.1. I must first consider the preliminary matter of whether the complaint is in time, and the submissions of the respondent in that respect. It submitted that the complainants were issued with their first contract of employment in October 2006, more than eighteen months before the complaint was made, whereas a complaint must be made within six months of the alleged incident of discrimination. It added that the revised contracts were issued after these complaints were made and so are irrelevant. On its face, the complainants allegation is that the failure by the respondent to provide them with a contract of employment in a language likely to be understood by them is discriminatory. The complainants submit that such a contract had not been provided by the time they made their complaint, and so it is an allegation that relates to an ongoing act of discrimination. As such, I am satisfied that it is within time in the context of Section 77 of the Acts.
Substantive matters
5.2. Section 85A of the 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.
5.3. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties. The complainants made submissions in relation to a considerable number of matters in advance at the hearing but withdrew these on the day of the hearing. The only matter I have to decide upon, then, was whether the respondent discriminated against the complainants in relation to their contracts of employment.
5.4. It is clear that the complainants received contracts of employment. However, they submitted that they did not understand them. In that context, they argue that the policy of the respondent to provide the contract of employment to them in English only sets them at a particular disadvantage vis-à-vis native English speakers as they did not understand the contract as provided. Section 22 (1) (a) of the Acts defines indirect discrimination as occurring "where an apparently neutral provision puts persons of a particular gender ... at a particular disadvantage in respect of any matter other than remuneration compared to other employees of their employer". Section 31 of the Acts, inter alia, extends this definition of indirect discrimination to the other eight grounds outlined in the Acts. The complainants submitted that, in this context, they were indirectly discriminated against by the respondent.
5.5. In support of their case, the complainants refer to the decision of the Labour Court in Campbell Catering and the decision of this Tribunal in Goode Concrete. The complainants in both these cases were treated less favourably because they did not fully understand their rights whereas the relevant comparator would have understood their rights in the same situation. In that context, the Tribunal has clearly outlined in a number of recent decisions that it is not the case that an employer is necessarily obliged to provide a contract of employment to a non-Irish national in a language likely to be understood by them in any and all circumstances.
5.6. What an employer must do, at a minimum, is to set out and follow appropriate procedures to ensure that an employee who does not fully understand the terms and conditions of their employment as laid out in their contract of employment is made fully aware of those terms and conditions, as well as the rights that are provided within the contract. This is particularly the case if that employee is in a situation where (s)he is set at a disadvantage vis-a-vis other workers because they are not fully aware of their terms and conditions and/or rights, such as where disciplinary procedures are invoked against them. I am satisfied in the respondent's case that such procedures have been set out and have been followed in relation to both complainants.
5.7. In that respect, I found the evidence of Mr Ciutys to be distinctly lacking in credibility and it is clear to me that he has a very good understanding of English, not least from my observance of him at the hearing of the matter. In relation to Ms. Cekanaviciene, while I found her to be a more credible witness than Mr Ciutys, I find, on balance, that, as far as the factual allegations made by her are concerned, I prefer the evidence of the respondent.
5.8. In particular, I am satisfied that the respondent provided induction training for both complainants, as it did for all its employees. In that training, it laid out the terms and conditions set out in the relevant employees contracts of employment, providing interpretation facilities for them in a language likely to be understood by them. I am satisfied that these interpreters were also made available to the complainants if they had any questions, and it was left open to them to raise any questions they wished to raise. In any event in relation to Mr Ciutys, I am satisfied that he perfectly understood the contract of employment as it stood.
5.9. Therefore, I am satisfied that the complainants' contracts of employment were explained to them in a language they understood so neither complainant could have been set at any disadvantage as they understood the terms and conditions laid out in the contract. In that context, I cannot accept their allegation that their working conditions were different to others because they did not understand the way working hours were set out by the respondent.
5.10. Therefore, the complainants' cases fail.
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 complainants have failed to establish a prima facie case that the respondent discriminated against them 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 complainants' cases fail.
_____________
Gary O'Doherty
Equality Officer
27th January 2011