The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 to 2011
DECISION NO. DEC-E2015-072
PARTIES
Grzegorz Delanowski
(Represented by SIPTU)
AND
Kellsydan Ltd. t/a McDonalds Restaurant
Represented by (BEC)
File reference: EE/2013/056
Date of issue: 27 August 2015
1. Background to Claim
1.1 This dispute concerns a claim by Grzegorz Delanowski (hereinafter the “Complainant”) who claims that he was discriminated against by Kellsydan Ltd. t/a McDonalds Restaurant (hereinafter the “Respondent”)on the grounds of discrimination based on race which amounts to a breach of the Employment Equality Acts 1998 to 2001 (hereinafter the “Acts”) Section 6(1) and Section 6(2) due to the company’s policy which prohibits the use of any language other the English.
1.2 The Complainant referred his claim to the Director of the Equality Tribunal under the Employment Equality Acts. In June 2015, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Caroline McEnery, 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. Submissions were received from both sides and in accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 22nd July 2015.
2. Summary of the Complainants’ Case
2.1 Mr Delanowski is a Polish National, who has been living and working in Ireland for a number of years and are employed by the Respondent since 11th November 2005. Currently, the Complainant is employed as a shift manager.
2.2 The basis for these claims is that the employer insists on the use of the English language at all times and refuses the complaints the opportunity of conversing in any other language all times and refuses the Complainants the opportunity of conversing in any other language. The Complainant views this as being discriminatory treatment based on race.
2.3 The insistence by the employer of using English only is not just restricted to the restaurant floor, but also the kitchen area and in meetings with management in the office area. Meetings with management have included disciplinary hearings where disputes have arisen in respect of translation, during the course of same.
2.4 The Complainant contend that there are no objective grounds for the employer’s English only policy.
2.5 The Complainant submitted the case Noonan Services Ltd – V – A Worker (EDA1126) where is found that “it is clear that a requirement to have competency in English is likely to place persons whose native language is other than English at a disadvantage relative to persons whose native language is English. Hence, prima facie, a requirement of competency in English is indirectly discriminatory unless it is objectively justified”
3. Summary of the Respondents Case
3.1 The Respondent operate four McDonald’s Restaurants throughout Limerick and employs 188 employees from 15 different countries. The Respondent promotes anti-discrimination within the company per the company handbook.
3.2 The Respondent outlined that in the company policy there is no outright ban on speaking a language other than English in the workplace. The Respondent stated that the policy recognises that it may at times be appropriate for employees to converse in a language other than English should a customer initiate a conversation in another language. It was also stated that employers are also permitted to use a language other than English while on a break provided that no other employee is being excluded.
3.3 The Respondent stated that it does use English as its business language for numerous reasons and that this decision is objectively justified for a number of reasons. In this case the Complainant is employed in client facing roles which requires a proficiency in English. Also the claimants are required to maintain a high level of health and safety standards in line with HACCP. All safety signs, documentation and records are in English and Food Safety Audits are conducted in English. It has also been deemed necessary based on the need for all staff members to be able to communicate and understand one another so as not to exclude any other member of staff based on the diversity of the workforce,
3.4 The Respondent referred to Southern Health Board –V – Mitchell, Dee 011 [2001] ELR 201 in which it was found that “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”. They also referred to the case of Andvzejeczak and 7 others – V - Microsemi where the Equality Officer found the Microsemi had objective grounds to justify the policy.
4. Findings and Conclusions of the Equality Officer
4.1 The issue for decision by me is whether or not the Respondent subjected the Complainants to discriminatory treatment on the basis of race, in terms of Section 6(1) and Section 6(2) of the Acts.
4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the Complainants to establish, in the first instance, facts from which discrimination may be inferred. 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.
4.3 The Respondent stated that under its Employee Handbook, English is identified as the business operational language and that “One of our greatest strengths is our diversity. We have a large workforce from many different countries who speak many languages, representing a diverse, multi-ethnic workforce. Another great strength of working for this company is the opportunity to be part of a team. To communicate effectively as a team it is essential that everyone feels included and involved. Every day in our business there are times when a common language is needed and in Ireland this language is English. There are many sensible benefits to this when dealing with customers and colleagues to ensure the best teamwork, customer service, food quality and safety. As a result, our employees are encouraged to speak English when working and when talking with customers. However, we recognise that at times another language may be more appropriate. In fact, we are proud of our ability to speak to our customers in their native tongue whenever and wherever appropriate.”
4.4 The Respondent stated that the reasoning behind the use of a business language was three-fold, form a health and safety perspective, to ensure inclusion and to ensure business efficiency.
4.5 The Respondent outlined that it was important for it that all employees should be able to understand the health and safety notices and instructions issued by supervisors and managers and given that it had different nationalities employed, it had to be able to ensure that instructions were understood and followed by all employees.
4.6 In the instant case, the Respondent has given three reasons to justify its policy of adhering to a business language: from a health and safety perspective, from a business efficiency perspective and from an inclusion perspective. I am satisfied that any one of these reasons justifies the use of a business language and more so when the three reasons are taken into account. Therefore I am satisfied that this practice is objectively justified.
5. Decision
5.1 Having considered all the written and oral evidence presented to me, I find that the Complainant has not established a prima facie case of discriminatory treatment in relation to conditions of employment.
____________________
Caroline McEnery
Equality Officer
27 August 2015