DEC-S2016-022

EQUAL STATUS ACTS

DECISION NO: DEC-S2016-022

PARTIES

Juris Leonovs

(Represented by Richard Grogan & Associates, Solicitors)

Vs

The Employment Appeals Tribunal

(Represented by Sarah-Jane Hillery BL

on the instructions of the Chief State Solicitor)

File No: ES/2014/0003

Date of issue: 7 April 2016

1. Dispute

1.1. This dispute concerns a complaint by Mr Juris Leonovs (the “Complainant”) that the Employment Appeals Tribunal (the “EAT”) discriminated against him on grounds of race and disability contrary to the Equal Status Acts by imposing a requirement to make a formal application to a sitting Division of the EAT for language interpretation services (rather than facilitating such a request by other means, such as in writing via the EAT complaint form).

2. Background

2.1 The Complainant is a Latvian national. On 2 October 2012 he made a claim to the EAT pursuant to the Redundancy Payment Acts and the Minimum Notice Acts against his former employer. On his complaint form, Mr Leonovs indicated that he would require an interpreter at the hearing of his case before the EAT. The substantive complaint was listed for hearing by the EAT on 7 January 2014.

2.2 By letter dated 21 November 2013 the EAT informed the Complainant’s legal representative that applications for the provision of language interpretation services for hearings must be made to a sitting division of the EAT. Such applications were accepted by the EAT on any sitting day and not later than one week before the scheduled hearing date.

2.3 On 17 December 2013 an application was made for an interpreter by the Complainant’s legal representative but the application was declined. In declining the application the EAT considered that, as the substantive complaint appeared to be “uncontested” (the Respondent had not entered any notice of appearance), it would be sufficient to have the Complainant’s legal representative outline the facts of the case at the hearing which, the EAT expected, would be short and straight-forward.

2.4 However, the Respondent appeared at the scheduled hearing on 7 January 2014 without having given any prior notice of intention to contest the claim. The EAT adjourned the hearing in light of this. The Complainant’s legal representative re-applied for the services of an interpreter and the EAT acceded, given that the case was now being contested.

2.5 On 17 December 2013 (the same date on which the application for an interpreter had been made to the EAT and was refused) the Complainant referred a complaint to the Equality Tribunal under the Equal Status Acts alleging discrimination on the ground of race. The complaint was subsequently expanded to include allegations of discrimination on the disability ground.

2.6 On 15 October 2015, in accordance with his powers under section 75 of the Employment Equality Acts, the Director General delegated the case to me, Gary Dixon, Equality/Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under part III of the Equal Status Acts. This is the date on which I commenced my investigation under section 25. Written submissions were received from both sides and I proceeded to a hearing on 30 November 2015.

2.7 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83.3 of the Workplace Relations Act 2015.

3. Summary Of Complainant’s Case

3.1 On 21 November 2013, following the submission of a complaint form to the EAT on which he stated that he would require an interpreter, the Complainant was advised that a formal application would have to be made to the Tribunal for interpretation services. The Complainant submits that the making of such an additional formal request to the Tribunal involves a financial cost of approximately €600 plus VAT, i.e. the legal costs associated with representation by his legal adviser who, he states, was required to appear before the EAT in advance of its scheduled hearings (i.e. before 10.00 am or 2.00 pm on any sitting day).

3.2 The Complainant submits that the Minister for Jobs, Enterprise and Innovation had set down the procedure whereby a complainant may request an interpreter on the complaint form. However, he states that the EAT’s position is that it is a quasi-judicial body which is entitled to set is own procedures. While the Complainant accepts this, he submits that the Labour Court, the Rights Commissioner Service and the Equality Tribunal have all accepted requests for interpreters in writing while the EAT did not do so.

3.3 The Complainant acknowledges that he can speak some English. However, he states that when he met with his solicitor there was always an interpreter present as he does not understand “legal” language. The Complainant submits that when his solicitor made the initial application to the EAT for interpretation it was refused on the basis that the evidence of his solicitor would be sufficient on the occasion in question which was expected to be a “rubber stamping” exercise. However, the Complainant considers that he is entitled to hear what is actually being said by all parties, including on his behalf, at a hearing. In this regard, and also in light of the fact that there are no application forms available in the Latvian language, the Complainant considers that he has not been afforded “reasonable accommodation” within the meaning of the Equal Status legislation.

3.4 The Complainant further submits that the EAT procedures constitute direct discrimination within the meaning of the Equal Status Acts as he was treated less favourably than an Irish national who would speak English (or Irish) as their first language.

3.5 The Complainant also considers that the EAT procedures constituted indirect discrimination within the meaning of the Equal Status Acts as there was an additional requirement on a non-Irish national, particularly a non-Irish national who has a disability, to formally apply to a sitting division of the Tribunal for an interpreter.

3.6 In conclusion, the Complainant states that there is a lack of reasonable accommodation in that it was unduly difficult to avail of the services of the EAT without the benefit of an interpreter; the EAT procedures were unduly restrictive as there were no facilities available at the reception desk to accommodate the Latvian language, i.e. there were no forms available in Latvian, nor were there any documentation in Latvian explaining how to apply for an interpreter. The Complainant also considers that it was outside the remit of the EAT to refuse to provide an interpreter on the basis that the matter before it was a “rubber stamping” exercise as he is entitled to know what is going on and what is being said during proceedings.

4. Summary of Respondent’s case

4.1 The Respondent submits that the Complainant is not operating under a “disability” within the meaning of the Equal Status Acts in that the inability to speak a particular language fluently does not constitute a disability and, as such, the obligation to reasonably accommodate the Complainant did not arise. Without prejudice to this argument the Respondent submits that, even if the Complainant is operating under a disability, it was reasonable to hold an oral hearing to determine the actual necessity for an interpreter.

4.2 Insofar as the Complainant states that his application for an interpreter was refused, the Respondent states that this decision was superseded by a decision of 14 January 2014 to provide an interpreter and submits that the matter, therefore, is now moot.

4.3 The Respondent also submits that the Complainant was not discriminated against on grounds of race as he was not required to make an application for an interpreter simply because he was Latvian. The Respondent states that, on the contrary, every person – regardless of race, colour, nationality or ethnic origin - who sought to have an interpreter present at a hearing before the EAT must first have applied in person and demonstrated to the EAT that the provision of interpretation services was essential to ensure a fair hearing. Therefore, the Respondent submits that the Complainant was not subjected to any less favourable treatment on the grounds of his race.

4.4 Insofar as it is alleged that the requirement to apply for an interpreter constitutes indirect discrimination (on either the race or disability ground), the Respondent states that the requirement was objectively justified by a legitimate aim and that the means for achieving that aim were appropriate and necessary. The EAT states that is has in place a system whereby interpreters are provided at no cost to parties to ensure that all parties coming before it are afforded the best opportunity to have their rights fully vindicated. In order to manage that service, not least with a view to ensuring cost efficiency, the EAT states that it put in place a procedure requiring parties to apply in person (or through a representative) to a division of the EAT for interpretation services; such applicants were required to simply set out the reasons why an interpreter was required.

4.5 The EAT states that the original purpose of this application process was to minimise the need to adjourn cases by avoiding applications arising for an interpreter on the morning of a hearing and also to manage the considerable costs associated with providing the interpretation service. The EAT considers, therefore, that this is a legitimate aim and the requirement is an appropriate and necessary means of pursuing that legitimate aim.

4.6 As regards the Complainant’s contention that the need for an application for interpretation in itself imposes a financial burden (asserted as €600 plus VAT), the EAT states that there is no requirement on a complainant to instruct a solicitor to make such an application; a complainant is perfectly entitled to make such an application in person and at no cost.

4.7 The EAT states that on the date on which the initial application for an interpreter was made (17 December 2013) it was understood that the claim in question would be unopposed as the employer had not, at that point, entered any notice of appearance. In the circumstances, the EAT states that it determined that an interpreter was not necessary to ensure that the Complainant received a fair hearing as it was willing to accept the Complainant’s summary of events from his representative. Accordingly, the EAT submits that its initial refusal to provide an interpreter – based on the circumstances then pertaining – was reasonable.

4.8 In essence, the EAT states that it determined that it would not be impossible or unduly difficult for the Complainant to avail himself of its services without an interpreter. However, when it became apparent on the day of the scheduled hearing (7 January 2014) that the employer intended to oppose the claim, the EAT states that it afforded the Complainant an opportunity to renew his application for an interpreter and that this application was acceded to. The EAT, therefore, submits that reasonable accommodation was provided as soon as it became apparent that the Complainant may be disadvantaged by not having an interpretation service available.

4.9 In light of the foregoing the EAT considers that it is entitled to apply a process for determining, in advance of scheduled hearings, whether an interpreter would be required, that the process is objectively justified by a legitimate aim and that the means of achieving that aim are both appropriate and necessary.

5. Conclusions

General

5.1 Prior to September 2014 the EAT operated a procedure requiring all applicants for interpretation services to apply in person (or through a representative) to a sitting division and set out their reasons for requiring interpretation. The current procedure is that parties indicate on a complaint form if they require an interpreter and, if so, one is arranged. There is no longer a need to apply to the EAT in person. I note that the EAT states that the reason the application system was changed is unrelated to the current case. Rather, it states that due to a large reduction in staff numbers, it became necessary to maximise the sitting time available and commit resources to its primary function of hearing cases. In other words, the removal of the need to hear applications for interpreters allowed more actual hearing time. The EAT states that a further factor in the decision to change its interpretation application system was the desire to standardise procedures across all of the Workplace Relations bodies.

Alleged discrimination on disability ground

5.2Disability is defined at Section 2(1) of the Equal Status Acts as follows:

(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person's body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, disease or illness which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour

Under the Equal Status Acts, the obligation to reasonably accommodate only arises where a person is deemed to be affected by a disability as defined above. Specifically, pursuant to Section 4 of the Acts, the EAT would be required to do all that is reasonable to accommodate the needs of a person with a disability as defined above by providing special treatment or facilities, if without such treatment or facilities, it would be impossible or unduly difficult for a person with a disability to avail of the EAT services. In my opinion the inability to speak a particular language fluently, such as the English language (the Complainant accepts that he “has some English”), does not constitute a disability within the meaning of section 2(1) of the Equal Status Acts and, therefore, I consider that allegations of discrimination on grounds of inability to fully converse in, or fully understand, a particular language are not sustainable under the Acts. Accordingly, I consider that the allegation of discrimination on the disability ground must fail.

Alleged discrimination of the race ground

5.3 The Complainant is a Latvian national. I note that the application made to the EAT on 17 January 2013 on behalf of the Complainant was for a “Russian” interpreter. While I understand that the Russian and Latvian languages are disparate, I also appreciate that many Latvian nationals are familiar with, and are comfortable conversing in, the Russian language.

5.4 Given the considerable costs associated with providing interpretation services, the EAT considers that it was reasonable to have had in place a process to ensure that these services were limited to a genuine need. Further, in unopposed cases the EAT states that applicants were generally required to simply set out the factual position grounding their claims which, in most cases, was executed by an applicant’s representative in short order without the need for an interpreter. The original complaint in this case was lodged at the EAT by the Complainant’s legal representative. Therefore the EAT was aware form the outset that the Complainant was being legally represented. Also, the EAT expected that the matter would be unopposed. I accept, therefore, that the EAT acted reasonably in initially declining to provide an interpretation service in light of its expectation that the case would be unopposed and particularly in light of the fact that when it emerged that the matter would be contested, that the EAT then adjourned the hearing and acceded to the request for an interpreter.

5.5 As regards the issues raised by the Complainant regarding the lack of staff at the EAT reception desk with appropriate Latvian language skills and also the lack of application forms in the Latvian language, I consider that such a requirement (i.e. to have either staff at reception who speak every language or forms available in every language) is beyond what is required or mandated by the Equal Status Acts. I appreciate that this point was accepted by the Complainant at the hearing.

5.6 It was open to the Complainant, who accepts that he “has some English”, to make an application for interpretation in person to the EAT at no cost. In my opinion, if an applicant chooses to engage a solicitor to make such the application on their behalf, that does not render the application process unreasonable or unfair per se.

5.7 I consider that the essential point in relation to the allegation of direct discrimination is that every applicant to the EAT, regardless of race, nationality or ethnic origin, etc., who sought to have an interpreter present at a hearing must have had applied to the EAT in person (or through a representative) to demonstrate that such interpretation services were essential in ensuring a fair hearing. The Complainant was not required to make an application for an interpreter because of his Latvian nationality or race. Therefore, I am satisfied that the Complainant was not subjected to less favourable treatment because of his Latvian (or non-Irish) nationality, i.e. the discriminatory ground of race.

Alleged Indirect discrimination

5.8 Indirect discrimination essentially involves a practice, policy or rule that is applied to everyone in the same way but has the effect of impacting less favourably on a particular subgroup. The allegation which arises here is that the practice complained of, i.e. the requirement imposed by the EAT on applicants for interpretation to make a formal application before a sitting division of the Tribunal, indirectly discriminates against those applicants, such as the Complainant, whose first language is not the English language.

5.9 In my opinion, the first question which arises in considering the allegation in this context is whether or not the imposition of the requirement amounts to less favourable treatment. The Complainant states that the hiring a solicitor constitutes less favourable treatment in that it imposes a financial burden on him. However, there was no requirement on the Complainant to instruct a solicitor to make the application on his behalf; he was entitled to make an application in person and at no cost. I note that the Complainant accepts that he “has some English”. Therefore I do not consider that it would have been unduly arduous for him to have made this application himself, without a legal representative. Accordingly I do not consider that the imposition of the requirement complained of amounted to less favourable treatment.

5.10 In light of the foregoing I consider that the allegations of discrimination contrary to the Equal Status Acts are not sustainable. I also consider that the EAT requirement was reasonable in ensuring that interpretation services were limited to a genuine need and that the requirement was a proportionate, appropriate and necessary means of achieving the EAT’s legitimate aim of keeping interpretation costs to a minimum.

6. Decision

6.1 In reaching my decision I have taken account of all submissions, oral and written, made to me in the course of my investigation, including evidence presented at the hearing.

6.2 In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision:

· I consider that the Respondent did not discriminate against the Complainant on the grounds of race or disability contrary to section 3 (2) of the Equal Status Acts.

____________________

Gary Dixon

Adjudication Officer/ Equality Officer

7 April 2016