DECISION NO. DEC-E2016-150
PARTIES
Lukasz Kacmarek, Marcin Turczyk and Rafal Wilczkiew
Represented by Richard Grogan Solicitors
AND
Aer Lingus
Represented by Arthur Cox
File reference: et-151232-ee-14, et-151225-ee-14, et-151230-ee-14
Date of issue: 11th November 2016
1. Background to Claim
1.1 This dispute concerns a claim by Mr Lukasz Kacmarek, Mr Marcin Turczyk and Mr Rafal Wilczkiew (hereinafter the “Complainants”) who claim that they were discriminated against by Aer Lingus (hereinafter the “Respondent”)on the ground of 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 while employees are working.
1.2 On the 2nd December 2014, the Complainants referred their claims to the Director of the Equality Tribunal under the Employment Equality Acts. On the 12th September 2016, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Peter Healy, 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 2nd November 2016.
1.3 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.
2. Summary of the Complainants’ Case
2.1 All of the complainants are Polish Nationals, who have been living and working in Ireland for a number of years and were employed by the respondent to work as Catering Assistants. At the relevant time all three worked together in close proximity carrying out similar or the same roles preparing meals for passenger flights.
2.2 The complainants submit that they are aware that the respondent’s policy is that English must be spoken in the workplace. In their written submissions the complainants submit that at various times they have queried this policy as “there is no logical reason” for it. In there written submissions they submit that the respondent has replyed
“The company’s respect and dignity (sic) identifies isolation of a staff member as a form of bullying. Our business language policy prevents any staff member being isolated through language.”
The complainants submit that in this case the employees are all catering assistants. They prepare food only and it is difficult to understand how there can be a business requirement to demonstrate a confidence in the English language for catering assistants.
2.3 The complainants submit that the respondent has to show that there is a real risk of isolation in the workplace that requires English to be spoken at all times. The complainant submits that the respondent admits that they do not allow employees to speak their main language while working but allows them to speak it during rest periods. The respondent submits that policies related to preventing isolation should logically apply at all times.
2.4 All three complainants seek to be allowed to speak Polish on the work line when they are conversing on a one to one basis. Complainant contend that there are no objective grounds for the employer’s English only policy in such circumstances.
3. Summary of the Respondents Case
3.1 The respondent rejects all aspects of these complaints. The Respondent has a large multilingual workforce. In its Catering Department, The Respondent currently employs 228 staff from 14 countries including Bangladesh, Estonia, Poland, Lithuania, U.K, Latvia, Hungary, Romania, Italy, Morocco, Nigeria, Thailand and Venezuela. There are currently approximately 32 Polish staff employed in the Catering Department. English is the business language of the respondent and is the common language spoken between all employees.
3.2 The respondent submits the English language policy for existing employees is set out on its intranet (which is available to all employees.) It states:
“The Respondent is proud to have a diverse and multicultural workforce. In order to promote occupational health and safety and to ensure business efficiency, all employees are required to communicate in English when performing their work related duties. This requirement will also prevent the exclusion and isolation of individuals or indeed groups of employees. However, all employees are free to speak in their native language while on official breaks.”
The respondent states that before the Policy was published on the intranet in 2015, it was a long-standing policy that English was the business language to be used during working time in Aer Lingus. This policy was communicated verbally to all members of staff in the Respondents Catering Department.
The respondent submits that complainants have not set out any alleged discriminatory treatment as a result of Aer Lingus’ English Language policy that would constitute a prima facie case of discriminatory treatment contrary to the Acts.
Without prejudice to Aer Lingus’ submission that the Complainant has not established a prima facie case of discrimination which would serve to shift the burden of proof to Aer Lingus, it is submitted that the Respondent did not discriminate against any of the Complainants by reason of their race by requiring its staff to speak English during working time.
It is submitted that having an English language policy is not, in and of itself discriminatory. As the Complainants suffered no particular disadvantage as a result of the requirement for them to speak English during their working time. In Potasinka v. Bank of Ireland Security Services Ltd [1],it was stated that a "particular disadvantage" means presenting either a significant challenge to the complainant to fulfil any obligations that arise under the [English language] policy, or else that the policy has very disruptive consequences for other aspects of the complainant's life.
The respondent submits that all the Complainants have a high standard of both written and spoken English. Each of the Complainants were recruited through English and advised of the requirement to speak English prior to applying for the role. The Complainants have not asserted that they did not understand English nor have they put forward any evidence they were disadvantaged in terms of carrying out their duties or were treated less favourably than any other employees by reason of the requirement to speak English. The requirement to speak English during shifts/working time applies to all employees in Aer Lingus’ Catering Department, and did not, in particular, apply to the Complainants or any individuals by virtue of their race. As stated above, the Policy only applies during working hours, and not during breaks or before or after shifts.
The respondent submits that the Complainants did not suffer any detrimental consequences as a result of the Policy. The Respondent neither threatened to take nor actually took formal disciplinary action against any of the employees. Although the Complainants names were recorded for repeated breaches of the language policy, a number of other employees from other nationalities were also listed in the book. This book was used to record all non-compliances by staff, for example, staff spoken to about wearing jewellery on the floor, and was not set up solely for the purpose of recording non-compliance with the requirement to speak English. No disciplinary action took place as a result of their names being recorded. In fact, notwithstanding the fact that their names have been recorded, some of the Complainants have been promoted to supervisory or other roles.
OBJECTIVE JUSTIFICATION
The Respondent denies that its Policy is directly or indirectly discriminatory. Without prejudice to the foregoing, if the Equality Officer/ Adjudication Officer finds that Aer Lingus’ Policy is discriminatory, which is denied, The respondent submits that the Policy is objectively justified. The Labour Court in Andvzejeczak, Komar and Others v. Microsemi Ireland Limited[2] considered the appropriate test when considering if a particular measure is objectively justified. In that case, it was stated:
“It is well settled that a potentially indirectly discriminatory measure is objectively justified if it is in pursuance of a legitimate objective of the employer and the means chosen are appropriate and necessary to that end.”
The Respondent has, in particular, three legitimate objective justifications for requiring employees to speak English during working time:
Inclusion and Team Coherence
Health and Safety/Food Safety
Business efficacy
The respondent submits that it has been accepted in a number of decisions by the Equality Tribunal and the Labour Court that an English language policy can be justified by the employer's desire to create an inclusive working environment. This was accepted in Milkowska v. Kings Laundry Limited[3] and Zdzalick and Rospenda v. Helsinn Birex Pharmaceuticals Ltd [4] and Microsemi Ireland Ltd. v. Stawarz[5].
The respondent submits that, in the catering department, there are 228 employees from 14 countries. 60 employees' native language is not English. The Respondent submits that if each of the employees spoke their native language, there would be a significant risk that employees would be divided into groups or cliques by reason of their native language, leaving other employees feeling isolated. This would particularly be the case if individuals spoke Polish to casually converse while performing their functions. This would be contrary to Aer Lingus’ requirement for inclusion in the work force. The Respondent promotes an open working environment whereby all employees feel included and that there is team coherence. This policy is in furtherance of its Dignity and Respect Policy and to prevent bullying and harassment arising out of isolation, in compliance with its obligations to provide a safe place of work.
The Respondent submits that from a practical perspective, it would be operationally unworkable for the Catering Department if there was no consistency in the language spoken by staff during working hours. Management in the Catering Department have a requirement to ensure that instructions and health and safety procedures are being followed. This would not be possible if the manager could not understand the language spoken by the staff under his/her control. It is also essential that staff members understand each other and can learn from each other and develop their skills to ensure smooth workflows in the department.
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 At the hearing of this complaint all three complainants were questioned separately and gave significantly different accounts regarding the existence of an English only policy.
It was Mr Turczyk’s evidence that he knew of the policy regarding use of English in the workplace from the outset as it was in his contract and about five years ago that he was verbally informed that the policy was to “stop exclusion of other people”. Further he submitted that he did “not need supervision” Significantly, his only evidence of any disadvantage the policy placed him in was his supervisor reminding him of the policy.
It was Mr Kaczamareks evidence that he had always assumed that there was an English language policy for common sense reasons. He said that it was on a “rare occasion “that he was told not to speak polish. On one occasion he was brought into the office. It was also his evidence that the supervisor could tell he was speaking polish from a distance in the work place. Significantly it was his direct evidence that he in no way felt disadvantaged by the language policy and in fact he has gone on to a higher position with the respondent.
It was Mr Wilczkiewicz’s evidence that on about 20 occasions he had been told not to speak Polish by his Supervisor and that he found this most upsetting.
4.4 All three complainants agreed that the respondent had never prohibited them from speaking Polish during break times or when they were otherwise off duty. None of the three could provide evidence of any sanction other than occasion their names being noted in a book kept by the supervisor. Having questioned the supervisor at hearing and having seen the book in question I am satisfied that no sanction was taken against the complainants.
4.5 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 and team coherence 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.
4.6 The complainants have sought to make light of the need for supervision or the complexity of their tasks with regard to the need for a language policy. Having reviewed the nature of the complainant’s roles and the role of the supervisor I am satisfied that the policy is necessary to prevent the isolation of the supervisor and other workers. I accept the supervisor’s evidence that she cannot be confident that workers are implementing her instructions properly if they begin to discuss her instructions in Polish as she is walking away from them. It is clear that the failure to implement her instructions would have serious consequences for the business operation.
4.7 Taking into account all three of the reasons given by the respondent I am satisfied that the language policy is objectively justified is implemented in a respectful manner and has not impacted negatively on any of the complainants.
5. Decision
5.1 Having considered all the written and oral evidence presented to me, I find that the Complainants have not established a prima facie case of discriminatory treatment in relation to conditions of employment.
____________________
Peter Healy
Adjudication Officer.
11th November 2016
Footnotes
[1] E2012-034
[2] EE/2011/290, EE/2011/371, EE/2011/532, EE/2011/533, EE/2011/534, EE/2011/278, EE/2011/0749 & EE/2011/750
[3] EE/2011/668
[4] EE/2013/475
[5] EDA157