DEC-E2015-036

The Equality Tribunal

Employment Equality Acts, 1998 to 2008

Equality Officer Decision

DEC-E2015-036

Ms Zydrina Mikoliuniene

[Represented by Richard Grogan & Associates]

-v-

Halcyon Contract Cleaners Ltd

File Ref: EE/2010/794

Date of Issue: 26 June 2015

Headnotes: Duty of care of employer - Employment Equality Acts 1998 to 2008 ss.2, 6 and 8.

1. Dispute

This case concerns complaints by Ms Zydrina Mikoliuniene (the “Complainant”), of Lithuanian nationality, that she was discriminated against on the grounds of gender and race, within the meaning of sections 6 (2) (h) of the Employment Equality Acts 1998 to 2008 ("the Acts") in conditions of employment, training, and otherwise contrary to section 8 of the Acts by Halcyon Contract Cleaners Limited (the “Respondent”).

2. Background

The Complainant referred complaints under the Employment Equality Acts (the “Acts”) to the Director of the Equality Tribunal on 26 October 2010. The Complainant sent in a written submission to the Equality Tribunal which was received on 8 April 2011. As required by section 79 (1) of the Acts and as part of my investigation I proceeded to hearing on 19 October 2012 which was attended by both parties. An answering submission was made by the Respondent at the hearing and the Complainant submitted a reply on 23 October 2012. The claim of gender discrimination was not pursued.

3. Summary of Complainant's case.

3.1 The Complainant stated that she was employed by the Respondent as a cleaner from 19 December 2007 to 19 January 2012. The Complainant claims that she was discriminated against in the following ways:

1. She did not receive any proper contract.
2. She received contractual documentation in English only, which put      her at a disadvantage, given her poor command of English.
3. She did not receive any proper Health and Safety documentation or training.
4. She was required to work 7 days a week when Irish workers did not      have to and did not receive rest breaks unlike Irish workers. She was not paid holiday pay. Wages were not paid to her. She was told      this was for tax reasons.
5. A request for information under an EE2 form was not responded to.

At no stage did the Respondent advise the Complainant of the Complainant’s right to raise a grievance and therefore no method was open to the Complainant to raise any issues. The Complainant contended that special measures may be necessary in the case of a foreign national to ensure that they are advised of their basic employment law rights and that the failure to do so amounts to discrimination.

The Complainant took a claim against the Respondent to the Rights Commissioner. The Respondent did not attend the Rights Commissioner hearing. The Rights Commissioner in a decision dated 6 December 2011 found in her favour in the following respects:

1. Failure to pay Sunday premium
2. Not compensated for Public Holidays
3. Did not receive holiday pay
4. Did not have a proper break between jobs

The Rights Commissioner awarded her 5,000 euro as not only compensation but also as a deterrent against future infractions. The Complainant secured a decision from the Labour Court on 10 April 2012 against the Respondent to enforce the Rights Commissioner’s award.

The Complainant argued that it is reasonable to assume that no Irish worker would have agreed to work 7 days a week.

3.2 Oral evidence

In oral evidence at the hearing the complainant pointed out that she was one of only 2 workers out of 600 who were required to work seven days a week. She worked from 5am to 7.30 am seven days a week and from 8am to 10am four days a week. She was not paid extra time for Sundays. She was not paid her holiday pay for two months after she returned from a 4 week break. No Irish person was expected to work seven days a week. She was allowed only a half hour to move between two buildings which meant she did not have a proper break.

3.3 The Complainant states that she did not receive from the Respondent a Contract of Employment in a language she understood. She contended that following the case of 58 Named Complainants v Goode Concrete Limited[1], that there is an obligation on an employer to provide a Contract of Employment in a language likely to be understood by the Complainant. The Complainant contends that the employer's failure to provide her with a written contract of employment is in conflict with his obligations under the Acts because a foreign national who does not receive a Contract of Employment is in a particularly vulnerable position. The Complainant accepts that an employer is only obliged to furnish those particulars as are set out in section 3 of the Terms of Employment (Information) Act. The Complainant argues that following the decision in Rasaq there would be a requirement on the employer 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. The Complainant contended that a notional Irish comparator would be aware of their entitlement to a statement under section 3.

3.4 The Complainant submitted that the Respondent failed to furnish her with a safety statement under the Safety Health and Work Act and that following the case of 58 named Complainants v Goode Concrete Limited there is a requirement to furnish a foreign national with a health and safety statement. There is a statutory requirement to furnish individuals with health and safety documentation. In the case of a foreign national who would not be conversant with Irish health and safety law, the contended that that there is an obligation to provide her with a Health and Safely statement and in failing to provide same to her in a language likely to be understood by her amounts to discrimination. The Complainant contended that a notional Irish comparator would be aware of their entitlement to a Health and Safety statement.

4. Summary of Respondent's case.

The Respondent submitted written evidence at the Hearing. The Respondent states that the Complainant received a copy of her contract of employment and her supervisor, who was of her nationality, would have translated it if asked. She was not forced to work seven days a week. She applied for it and turned down the offer of a five day week, which would have meant less money. It was her choice to work a seven day week. The Respondent admitted a 2 month delay in paying holiday pay. It also admitted that on two occasions the Complainant did not receive her correct pay. These errors arise from time to time in a company employing a large workforce and are not discriminatory.

5. Director’s conclusions

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 her. If she 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. In a recent Determination the Labour Court[2], whilst examining the circumstances in which the probative burden of proof operates held as follows -

"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.

In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."

5.2 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. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.

5.3 Section 6(1) of the Acts 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 ethnic or national origins". It follows that the Complainant must establish that she was subject to less favourable treatment on the ground of race (nationality) because she is Lithuanian.

Section 8 of the Acts provides that an employer shall not discriminate against an employee in relation to conditions of employment or training. Section 8 (6) states:

an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures, as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.

Section 8 (7) states:-

an employer shall be taken to discriminate against an employee in relation to training or experience for, or in relation to, employment if, on any of the discriminatory grounds, the employer refuses to offer or afford to that employee the same opportunities or facilities for employment counselling, training (whether on or off the job) and work experience as the employer offers or affords to other employees, where the circumstances in which that employee and those other employees are employed are not materially different.

5.4 Discriminatory treatment in relation to Conditions of Employment and Training

The Complainant has claimed that the Respondent discriminated against her by failing to provide her with any proper contract. She claimed she received documentation in English only, which put her at a disadvantage, given her poor command of English. She claimed she didn’t receive Health and Safety documentation or training.

The written and oral evidence presented to me leads me to conclude that in respect of contracts, documentation and training the Complainant received from her employer the same treatment as persons of any other race or nationality.

The Complainant’s representative argued that it is settled EU law that “discrimination involves the application of different rules to comparable situations or the application of the same rules to different situations…” [3] He asserted that the Complainant’s poor command of English put her in a materially different situation than a notional Irish comparator. To treat her same amounts to indirect discrimination. The employer ought to have given the Complainant the documentation in a language she could understand.

Section 3 of the Terms of Employment (Information) Act 1994 imposes certain legal requirements on employers in relation to information that must be given in writing to all employees. To assert that in all cases there is a legal requirement to provide foreign nationals with documentation in a language likely to be understood by the employee is incorrect. All employers have a duty to ensure that the rights of their employees are not violated and, in some cases, where facts support such an approach, documentation may be required to be translated. Facts supporting such an inference must be provided by the Complainant.

In the current case, the Complainant did not at any stage inform her employer that she had a difficulty understanding any documentation supplied to her in English. In oral evidence to me, she stated that she understood the contract because a neighbour translated it for her. The Respondent stated that if the Complainant requested it her supervisor could have translated for her. I conclude that the facts in this case do not show that, in relation to understanding her employment contract, or other documentation received by her, the Complainant was in a situation which was materially different to that of persons of another race or nationality. Therefore the employer treated her in the same way as other employees would be treated in a comparable situation.

5.5 Duty of care to foreign employees

However, I think that the record of the Respondent in its treatment of the complainant is a poor one. A matter of some concern is the fact that the respondent engaged a large number of foreign workers without having translated employment contracts and health and safety information available and leaving it to the individual employee to take the initiative to obtain translations. Communication by the Respondent on the question of holiday pay was poor. The complainant felt obliged to take the Respondent to the Rights Commissioner to vindicate her rights. The Respondent did not attend at the Rights Commissioner hearing. When the Rights Commissioner found against the Respondent, the respondent did not pay the award to the complainant and did not appeal. The complainant was forced to take Labour Court proceedings to get the award paid. Moreover, when the Complainant lodged a claim to the Equality Tribunal and sent to the Respondent a request for information in the prescribed form the Respondent did not respond until the day of the Hearing. The Labour Court commented on the duty of care associated with recruitment of foreign workers in A Company (Respondent) and A Worker (Complainant) (Determination No EED024) as follows:

The Court is also satisfied on the balance of probabilities the treatment of the worker by the manager, and the almost complete non- implementation of relevant legislation, was due to the fact that it regarded the worker as someone of different nationality who would not have the capability to stand on her legal rights and that by its actions…it discriminated against her on grounds of her nationality.

More recently, in Campbell Catering Ltd and Aderonke Rasaq (Determination No EED048), the Court said

"It is clear that many non-national workers encounter special difficulties in employment arising from lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture."

The Court went on to say that applying the same procedural rules to foreign workers as applied to Irish workers could, in itself, amount to discrimination. It is clear that the respondent in this complaint made no adequate provision for the employment rights of this foreign worker. The Complainant was disadvantaged by her poor command of English and the actions and omissions of the Respondent put her at a particular disadvantage compared to a hypothetical Irish employee.

6. Decision

6.1 Based on the foregoing, I find that the Respondent discriminated against the complainant contrary to the provisions of the Employment Equality Acts 1998 - 2004, in its failure in its duty of care to her as a foreign employee.

6.2 The Respondent did not discriminate against the Complainant in assigning her to a 7 day work pattern.

6.3 Accordingly, I find in favour of the Complainant in this matter.

6.4 I hereby order the Respondent to pay the Complainant the sum of €5,000 in compensation for the effects of discrimination.

___________________

Niall McCutcheon

Director

26 June 2015.

Footnotes

[1] [DEC – E2008 – 020]

[2] Arturs Valpeters v Melbury Developments [2010] 21 E.L.R. 64.

[3] Gillespie and ors v Northern Health and Social Services Board and ors (C-342/93) [1996] ECR I-475