The Equality Tribunal
3 Clonmel Street
Dublin 2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774141
E-mail: info@equalitytribunal.ie
Website: www.equalitytribunal.ie
Employment Equality Acts
1998-2008
EQUALITY OFFICER'S DECISION
NO: DEC-E2011-211
PARTIES
Jacek Jedrych
(Represented by Richard Grogan and Associates)
- V -
Contract Personnel Ltd
(Represented by IBEC)
File references: EE/2009/846
Date of issue: 15 November 2011
Keywords
Employment Equality Acts 1998-2008 - Discriminatory Treatment - Discriminatory Dismissal- Race - Condition of employment - Prima facie case
1. Dispute
1.1. This dispute concerns a claim by Mr. Jedrych (hereafter "the complainant") that he was subjected to discriminatory treatment, harassment and discriminatory dismissal on the grounds of his race by Contract Personnel Ltd (hereafter "the respondent") contrary to the Employment Equality Acts.
2. Background
2.1. The complainant referred his claim of discrimination to the Director of the Equality Tribunal on 23 November 2009 under the Employment Equality Acts. This claim was made on the race ground. On 29 September 2011, in accordance with his powers under section 75 of the Acts, the Director then delegated these cases to me, Elaine Cassidy - 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 which date my investigation commenced. As required by Section 79(1) and as part of my investigation, an oral hearing was held 9 November 2011 and both parties attended. A Polish interpreter was provided at the request of the complainant's representative.
3. Case for the complainant
3.1 The complainant, a Polish national, worked for the respondent as a Sales Representative for 2 years between 2007 and 2009. The complainant had originally complained of Harassment, Discriminatory Dismissal and Discriminatory Treatment in relation to training and conditions; however all of these issues were withdrawn at the hearing and the only remaining complaint was that the complainant did not receive his contract of employment in a language which he understood.
3.2 The complainant submitted that he was given a contract of employment in English. He agreed that his English was good, but stated that it was not good enough to understand legal English. He stated that legal language is technical and if he was to go to court in his native country he would have trouble understanding legal Polish also. The complainant's legal representative submitted that there is a big difference between oral or business English and the level of English which would be required to understand a contract. He submitted that the complainant should have ideally been given a translated contract, but if not, the contract should have been explained to him in non-legal language. He submitted that in a multinational workforce, the employer should be obliged to explain formal written documents; otherwise non-nationals would be put at a disadvantage.
4. Case for the respondent
4.1 The respondent stated that the complainant had very good English, which had been evident throughout his employment. In evidence they submitted that:
The recruitment advertisement had been in English and stated that a high standard of English would be required.
The interview process was rigorous and had all been conducted through English.
The complainant's CV, which stated that he spoke business English and also a written reference from a previous employer who stated that the complainant's ability to work as an interpreter had been very helpful in that employment.
The complainant's results from his ongoing assessments with the respondent. They noted that the complainant had scored highly in his proficiency regarding the product and that all the questions and answers were in English.
The job itself required a high standard of English as it involved making door-to-door calls to sell and complex and technical product.
4.2 The respondent further submitted that the complainant had never raised any issue in the two years he worked there, regarding his inability to understand anything. They further submitted that their contracts are deliberately written in plain English and not legal English and are therefore no more difficult for the complainant to understand than any other person. The respondent submitted that they employ staff from all over the world and everyone receives the same contract, as well as their full list of policies regarding harassment, grievence procedures, health and safety and all other matters.
4.3 Overall the respondent rejected entirely the complaint made against them. They stated that they are an equal opportunities employer and they resent the accusation of causing, allowing or permitting the complainant to be the subject of discrimination.
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 from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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. 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 burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)....." Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows - "as between any 2 persons, ... that they are of different race, colour, nationality or national origins".
5.3 Only one issue remains to be decided in this case; whether the complainant was discriminated against by being given a contract of employment in English. I have noted his submission that while he spoke good English, he did not have sufficient level to understand business English. However I have also noted that the complainant himself agreed that he never asked any questions about his contract and in fact he never asked for help at all with respect to his understand of his contract, his training or any other matter. In fact he held himself out at all times, as an employee who was fully competent in English. I find that it is not reasonable that he now suggests in retrospect that the employer should have taken it upon themselves to look behind his competence and thus treat him differently to all other employees of all nationalities. I also accept the respondent's argument that the contract, while lengthy, is written in plain English rather than difficult legal language. Taking these points and the respondent's submissions at 4.1 into consideration, I find on the balance of probabilities that the complainant was not treated in any way which would have put him at a disadvantage with respect to his Irish colleagues or his colleagues of any other nationality.
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: I find that the complainant has been unable to establish a prima facie case of discrimination with respect to either his conditions of employment. As noted earlier at 3.1, all other aspects of the complaint were withdrawn. Therefore his claim fails and I find in favour of the respondent.
__________________
Elaine Cassidy,
Equality Officer
15 November 2011