ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003370

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 05/10/2016

Workplace Relations Commission Adjudication Officer: Shay Henry

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998, and section 13 of the Industrial Relations Act, 1969 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Complainant’s Submission and Presentation:

The complainant has been employed by the respondent since August 2007. In September 2012 she secured the position of supervisor on the evening shift which comprised of 19 staff. For this role she was paid 10 hours extra pay per week at a rate of 1.8 times the hourly rate. She carried out the role without problem for over three years. When she arrived to work on 28^th December 2015 she was removed from the roster and her name was down for the picking line. A notice was placed in the canteen advertising the position of supervisor. On 14^th January 2016 the complainant sent a letter to the HR Department. At a subsequent meeting the complainant was advised that she would have to apply for the position. On the advice of her union the complainant applied. She attended for interview with a translator who was not allowed to accompany her. Subsequent to the interview the complainant was informed by Mr MS, the Yard Foreman, that she was not suitable because she had bad English.

The company did not have any more meetings with the complainant under the grievance policy. Siptu attempted to make contact with the then HR Manager but with no reply. The complainant has been moved to work on the day shift and her wages are down €100 per week. She is often expected to carry out supervisor work.

Employers are not permitted to discriminate based on race and it is the complainant’s position that the comments made to her regarding her level of English establishes a prima facie case of discrimination.

Respondent’s Submission and Presentation:

Prior to October 2015 the company operated on a 2 shift cycle. After that date it was moved to a one shift cycle to ensure that the facility operated within its 60,000 tons licence limit. Between October and December 2015 a review of work practices was carried out. This review highlighted the practice of paying operatives additional hours for ad hoc supervisory activities. These additional hours were not worked by the operative in all cases. There were 6 operatives including the complainant who were paid for hours not worked. These payments were for ad hoc picking line supervision, yard supervision and machine operative work and the duties were generally divided between the Picking Line and the Yard Floor, with separate people responsible for each. The Head of Operations, Mr AB decided that the practice of paying staff for hours not worked should cease immediately and that a supervisory role covering both the Picking Line and the Yard Floor was justified. The role should be advertised and a formal recruitment process followed. The rate of pay would be at the benchmarked supervisory rate. Subsequently it was decided to have two such positions.

The jobs were advertised with a requirement to have proficiency in English. This was required for a number of reasons including; accurate completion of shift handover, dealing any issues in incoming waste and communicating any issues for follow up e.g. recyclable waste contaminated with non-recyclable waste, communicating any equipment issues to management and communicating any issues to emergency services. On the evening shift the supervisor is the most senior manager on site.

The company afforded the complainant a number of opportunities to apply for the positions after the original closing date. Eventually, she applied and was interviewed on 10 March 2016. The claimant sought to have a translator with her at interview but this was refused as ability to engage in English was a requirement for the job. The candidates were interviewed by Mr MS, Yard Foreman and Mr SD, HR Officer. Five criteria were used as follows; relevant experience, leadership, managing performance, communication, managing external relationships. The claimant scored well compared to other Lithuanian nationals under all the criteria except for communication skills. An Irish national was scored highest and the claimant, and another Lithuanian applicant received the same overall score, and were ranked joint second. The interviewers consulted Mr AB who decided, on the basis of proficiency in English being a requirement for the role that the second position be offered to the other Lithuanian applicant.

The respondent contends that no discrimination took place as both the complainant and the other Lithuanian applicant are of the same race. It is clear from the job advertisement that proficiency in English was a requirement for the role. The decision not to give her the position was based on this criterion.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Section 13 of the Industrial Relations Act 1969 requires me to make a recommendation in relation to the complaint.

Legislation involved and requirements of legislation:

Section 31 of the Employment Equality Act prohibits indirect discrimination and states that;

"Indirect Discrimination occurs where an apparently neutral provision puts persons of a particular race, colour, nationality or ethnic or national origins at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer."

Where an apparently neutral provision puts the member of a protected group at a particular disadvantage when compared to other employees, the employer may have to objectively justify the application of that provision. Even though such a provision appears neutral in the one sense in that it operates to all employees, if it disadvantages a class of employees within the employment, it may be unlawful indirect discrimination.

In order to defend a claim of indirect discrimination, the employer must demonstrate that there are objective reasons to justify the particular requirement or condition which means it must be justified by a legitimate aim and the means of achieving the aim are appropriate and necessary. Any reasons advanced by an employer which constitute objective justification must be cogent and sufficiently specific to the circumstances of the case.

Section 85A of the Employment Equality Act imports the burden of proof requirement to be established by both the complainant and the respondent. The section shifts the burden of proof to the respondent where facts are established by a complainant from which it may be presumed that there has been discrimination in relation to him or her. The Labour Court has held that a requirement to be competent in a particular language is prima facie indirectly discriminatory on grounds of race as it is likely to place persons whose native language is other than the required language at a disadvantage relative to persons whose native language is the required language.  (Pryle v Gaeltic Utilities Ltd DEC-2012-026)

Conclusions:

The requirement to be proficient in English can be prima facie indirectly discriminatory on grounds of race as it is likely to place employees whose native language is not English at a disadvantage relative to other employees.

In evidence the respondent stated that proficiency was required in relation to both the oral and written language. The respondent confirmed that applicants were not tested on their ability relating to the written language. This lack of testing applied to the two successful applicants one of whom was Irish and the other Lithuanian. In assessing the complainant’s suitability for the position the selection board found her suitable insofar as they placed her joint second. It is therefore reasonable to conclude that, in the view of the selection board, she did not fail to meet the required standard of English necessary to carry out the role. I also note in this regard that the complainant carried out a supervisory role for several years without complaint. It is also of note that the selection board scored the complainant under each criteria based on questions asked at interview and that therefore, her level of oral English was sufficient for communication purposes to that Board.

The respondent has confirmed that the decision not to offer the complainant the position was taken by Mr AB, the Head of Operations, on the basis of proficiency in English being a requirement for the role. The advertisement for the role did state that proficiency in the English language was a requirement. It also stated that the person ‘must be MS Office proficient’. Clearly this criterion was equally a requirement. No examination of any applicant’s competency in meeting this requirement was carried out.

Notwithstanding the above deficiencies in the selection process the complainant’s claim of discrimination on race grounds in relation to promotion must fall on the basis that the eventual successful candidate, with whom the complainant was originally placed equal second, was also a Lithuanian national. As the person was of the same race as the complainant, no discrimination can occur on the race ground. The two positions of supervisor were filled by one Irish person and one Lithuanian. The scoring evidence provided indicated that the candidate placed first, the Irish person, merited such placement under criteria other than proficiency in English and no suggestion to the contrary was put forward at the hearing. It was not alleged that the claimant was discriminated against as compared with the Irish national.

The complainant carried out a supervisory role for a number of years. The respondent has sought to classify this work as ad hoc in nature. However, it is clear that the role was formalised insofar as it was approved by the management of the plant on an open ended basis. The respondent has stated that following the review it was decided that the practice of paying operatives for hours not worked had to cease. However, it is my view that these hours were never intended to be worked and that this was simply a device arrived at in determining the appropriate differential for the supervisory duties i.e. a sum the equivalent of a certain number of hours. There is no suggestion that this remuneration did not have the approval of the company at the appropriate level. I do not accept that the supervisory role carried out by the complainant was ad hoc in nature and I find that the complainant was unfairly treated in being demoted from the supervisory position.

Decision and Recommendation:

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

I have inquired into the above complainant and make the following decision in accordance with section 77 of the Employment Equality Acts and section 41 (5) (a) (iii) of the Workplace Relations Act 2015; that the complainant has failed to establish a prima facie case of discrimination on the race ground.

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969.

I have inquired into the above complaint and make the following recommendation under section 13 of the Industrial Relations Act, 1969; that the respondent pay the complainant €10,000 as compensation for the general unfairness of its treatment of her, which not being an award of wages is not subject to tax.

Dated:   28/11/2016