THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2012 - 034
PARTIES
Ms Karina Potasinska
and
Bank of Ireland Security Services Ltd (represented by Seamus Clarke B.L., instructed by Bank of Ireland in-house legal service)
File References: EE/2008/556
Date of Issue: 21st March 2012
1. Claim
1.1. The case concerns a claim by Ms Karina Potasinska that Bank of Ireland Security Services Ltd discriminated against her on the grounds of gender and race contrary to Sections 6(2) (a) and (g) of the Employment Equality Acts 1998 to 2008, in terms of her conditions of employment, harassment and sexual harassment.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 18 August 2008. A submission was received from the complainant on 9 December 2008. A further submission was received from the complainant on 31 May 2011. A submission was received from the respondent on 26 October 2011. On 19 July 2011, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to Mr Enda Murphy, Equality Officer, for investigation, hearing and decision. When Mr Murphy left the Tribunal and relinquished the case before it had come to hearing, 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. That was on 31 January 2012. 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 28 February 2012.
2. Summary of the Complainant's Written Submission
2.1. The complainant is a Polish national, who commenced working for the respondent in 2007. In her submission of 9 December 2008, received through her then representative, the complainant states that she was not allowed to speak Polish at work. This was a new policy which the respondent introduced after Christmas 2007. The complainant met with various managers in the respondent organisation on this issue. She contends that this policy was not contained in her handbook or terms and conditions of employment. The complainant alleges that she was put through a disciplinary procedure after complaining about the matter, and that the respondent's manager controlled whether she spoke Polish. The complainant states that her work is in fund evaluation and that she has no contact with clients.
2.2. In her submission of 31 May 2011, which the complainant drafted herself without legal representation, she lists a number of other incidents which in her view constitute discrimination.
2.3. The complainant alleges that a black Irish colleague was facilitated with changing teams, but not herself. She further alleges that one of her managers asked her several times in meetings why she was not leaving the respondent, which in the complainant's view constitutes harassment, and that a female manager was telling untruths about her to HR, which she also views as harassment.
2.4. The complainant alleges that she was asked not to contact that female manager, but that a male colleague of hers had no problem contact that same manager via email.
2.5. She further states that a named male manager confronted her with statistics which showed that she was the least effective employee on the floor. In her view, this also constitutes harassment.
2.6. The complainant states that she was asked to produce a doctor's certificate for a sick leave absence whereas a French female colleague was not.
2.7. The complainant did not expand on her complaint of sexual harassment in any way in her written submissions to the Tribunal.
3. Summary of the Respondent's Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all. It submits that a policy was introduced that only English should be spoken at work in order to facilitate communications in a multi-national workforce. It stresses that employees continued to be free to converse in their native languages during breaks and outside the office. The respondent disputes that this policy is discriminatory in any way.
3.2. With regard to the other issues raised by the complainant, the respondent submits that it is difficult to see how these could possibly ground a claim for discrimination based on gender and/or race, or a complaint of harassment or sexual harassment and that the complainant will not be able to make out a prima facie case of discrimination on these matters.
3.3. The respondent also submitted a copy of a written complaint of discrimination and harassment by the complainant to HR. None of the allegations in that complaint support a claim of these kinds of unlawful conduct within the meaning of the Acts.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was discriminated against, harassed or sexually harassed 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. With regard to the respondent's policy that English only should be spoken during business hours, and other languages should only be spoken during breaks, the respondent stated that the team the complainant worked on had 22 staff on it, including French, Italian, Czech, four Nigerian, five Polish, one naturalised Irish citizen who is a native of Kenya, with the remaining staff being Irish.
4.4. The complainant, when asked to specify her complaint about this matter, stated that she did not know when she took up employment with the respondent that English would be the business language, since this was not mentioned in her contract of employment. She further stated her opinion that the respondent did not have a right to introduce policies that were not specified in an employment handbook, simply by way of an email to staff. Finally, in response to a specific question as to how the respondent's policy put her at a "particular disadvantage" within the meaning of S. 31 of the Acts, the complainant stated that she did not understand financial jargon because English was not her native language and because she was not an accountant.
4.5. I cannot accept any of these statements as grounding a valid complaint that the respondent's English-language policy was indirectly discriminatory towards the complainant. However, the complainant elected to work in Dublin, Ireland, for Bank of Ireland, a business that has been established in this country since the 18th century, and is not a subsidiary of a Polish bank. Accordingly, it should be obvious that the respondent's language of business is English. Furthermore, it is the right of management to introduce policies to manage the workplace at any time, as long as these policies are not discriminatory within the meaning of the Acts. The email to staff from the Director who was responsible for introducing the policy was submitted in evidence, and I am satisfied that the matter was communicated clearly to all staff.
4.6. In order for any workplace policy or practice to be indirectly discriminatory within the meaning of either S. 22 or S. 31 of the Acts, it is for the complainant to show that the policy or practice put him or her at a "particular disadvantage". This is normally understood to mean presenting either a significant challenge to the complainant to fulfil any obligations that arise under the policy, or else that the policy has very disruptive consequences for other aspects of the complainant's life.
4.7. In the complainant's case, that would mean not being able to speak English well enough to fulfil the request to speak only English during business hours. From the complainant's submission and correspondence with the Tribunal, from emails written by the complainant submitted in evidence, and from the complainant giving oral evidence during the hearing, I am satisfied that she is completely fluent in English, close to the level of a native speaker. Accordingly, I am unable to accept that she would have difficulty to comply with the policy.
4.8. I am further unable to accept the complainant's argument that she did not understand financial jargon, since this is a situation that even a native speaker of English might find themselves in, or that she did not understand certain terms. I put it to the complainant that having to ask for the meaning of terms, and aquiring knowledge of a professional terminology in any field is simply par for the course if one elects to carry out a professional role in a country and a language that is different from one's native culture.
4.9. In light of all of the above, I am satisfied that the complainant has not succeeded in demonstrating how the respondent's policy, that English be the only language used by a multilingual workforce during business hours, put her at a "particular disadvantage" within the meaning of S. 31 of the Acts, and that this part of her complaint must therefore fail.
4.10. With regard to the complainant's complaint of harassment, it is clear from the email she wrote to a senior staff member in the respondent's HR division complaining of harassment, that none of the matters complained of constitute harassment within the meaning of S. 14(7) of the Acts, in that none of them refer in any way, directly or indirectly, to the complainant's gender or her Polish nationality. With regard to her complaint of sexual harassment, the complainant confirmed in evidence that she never made any complaint to the respondent in this regard. However, in order to be vicariously liable for harassment or sexual harassment, an employer needs to know or ought to have known that such alleged unlawful conduct is happening, in order to respond to it as appropriate. In this context, I do find it to be of probative value that the complainant was clearly aware of the respondent's policies when she made her complaint of racial harassment and did not hesitate to utilise it.
4.11. Accordingly, I find that the complainant has not succeeded in establishing a prima facie case that she was either harassed, on the grounds of gender and nationality, or that she made the respondent aware by way of a complaint that she was sexually harassed, within the meaning of the Acts and that this part of her complaint must therefore fail.
4.12. The complainant also made reference in her submission to a few incidents where she felt she had been treated less favourably than two named colleagues, Ms. G. and Mr B. When I asked for their nationalities, she stated that Ms. G. was French and that Mr B. was Polish. I drew the attention of both parties to the recent Labour Court decision in Europa Plus Ltd v. Nijole Kvostiene [EDA121], where the court has found that
If the Complainant shows that the treatment which he or she was afforded was less favourable that that afforded to a comparator whose circumstances are similar, other than in respect to a protected characteristic, the first question is resolved in his or her favour. The Court must then go on consider if the impugned treatment was on one of the proscribed grounds. This means that the reason for the less favourable treatment - not necessarily the only reason, but one that is significant in the sense of more than trivial - must be the protected characteristic relied upon, such as the Complainant's race, disability, gender etc. [Emphasis added]
4.13. I find that if the persons who the complainant says where treated more favourably than her were, on the one hand, a French woman, and on the other hand, a Polish man, her complaint that she discriminated against on the grounds of gender and race can impossibly succeed. Against her French woman colleague, she might claim that it was her Polish nationality that led to her being discriminated against, except that her Polish colleague was also treated more favourably than her. Conversely, against her Polish colleague, she might claim she was treated less favourably because she was a woman, yet her French woman colleague was also treated more favourably, according to the complainant's own evidence.
4.14. It is also worth noting that neither of these persons were available to the Tribunal to give evidence. When the complainant was asked why they were not available as witnesses, the complainant stated that they would be available to give evidence "in court" and that she just wanted to finish Tribunal proceedings in order to "get to court". The complainant went on to state that she felt I was being unfair to her, a contention I strongly rejected. I pointed out to the complainant that with my questions to her, I was doing my best to ascertain whether she had a valid case under the Acts, and that it was not my fault if she, possibly as a result of receiving poor and incorrect legal advice, was not in a position to present evidence to support her claims.
4.15. Finally, the complainant contended that when it came to the implementation of the English-only policy examined in paragraphs 4.3 to 4.9 above, that she was disciplined much more severely than other staff members, in particular two Nigerian staff members whom the complainant overheard one day speaking to each other in one of Nigeria's regional languages. The complainant alleged that two members of management, Ms C. and Ms K., "chased her around the office" and "spied on her" as to whether she would use Polish whereas the two Nigerian women were merely reprimanded. Again, it is worth noting that neither Nigerian staff member was present as a witness to confirm any of this, nor did the complainant produce any witness to confirm her allegations against the two members of management.
4.16. Nevertheless, I did put the allegation to Ms. C. and Ms. K. for their response. Both denied any of the alleged behaviour. Ms K. said that she met once with the entire team to introduce and explain the policy, that only English should be spoken in the work environment and that it was ok for staff to use their native languages during breaks. She stated that she never spoke to the complainant directly on the matter. Ms C. stated that she spoke to the complainant twice about her continued use of Polish. It was stated that the two Nigerian staff members were cautioned about their behaviour, since it was the first time this had come to the attention of management. Ms C. stated that overall, very little disciplining of staff was necessary to implement the policy.
4.17. I am satisfied from the respondent's evidence that the two Nigerian staff members attracted only mild discipline for their breach of the policy because it was the first time they infringed it, and that it was not related to their race. I am further mindful of the fact that the complainant has produced no evidence whatsoever for her allegation that Ms C. and Ms. K. "chased her around the office", which, if true, would be the kind of incident which would attract widespread attention and for which a whole number of witnesses should be available to confirm its veracity. Accordingly, I am satisfied that the complainant has not succeeded in establishing a prima facie case that she was treated less favourably, on the ground of her nationality, in the manner in which the respondent disciplined her over breaches of the respondent's English-only policy.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that Bank of Ireland Security Services Ltd did not discriminate against Ms Karina Potasinska, on the grounds of gender and race, contrary to S. 8(1) of the Acts.
______________________
Stephen Bonnlander
Equality Officer
21 March 2012