DEC-E2017-052

Employment Equality Acts

DECISION NO: DEC-E2017-052

Ms. Zanetta Zimareva

(Represented by SIPTU)

V

Boxmore Plastics Ltd

(Represented by Purdy Fitzgerald Solicitors)

File Nos. Et-159527-ee-15

Date of Issue: 14th July 2017

DISPUTE

1.1 The case concerns a claim by Ms. Zanetta Zimareva (hereinafter referred to as ‘the complainant’) that she was subject of discrimination by Boxmore Plastics Ltd (hereinafter referred to as ‘the respondent’) on the grounds of race contrary to section 6 of the of the Employment Equality Acts (hereinafter referred to as ‘the Acts’) in relation to conditions of employment and harassment. The complainant also claims that she was the subject of victimisation by the respondent in terms of Section 74(2) of the Acts.

1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on the 4 September 2015 under the Acts. On 24th April 2017 , in accordance with her powers under section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission referred the case to me, Peter Healy, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. I proceeded to hearing on 7th June 2017. The respondent and complainant made a written submission in advance of the hearing. The complainant withdrew the ground of gender in that submission. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.

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.

SUMMARY OF COMPLAINANT'S CASE

2.1The Complainant has been employed by the Respondent for over 10 years as a general operative/machine operator at the Respondent’s plant in Ballyconnel, Co Cavan. The Respondent manufactures plastic packaging for a wide variety of lines including the dairy and drinks industries.

2.2The complainant is a Latvian National who has lived in Ireland for the past 12 years.

2.3On the morning of the 18th December 2014 the complainant attend for work at 8am as was her normal starting time for that particular shift. On arrival the complainant found her work area to be in a very messy and un-kept state from the previous shift. The complainant set about carrying out her prescribed inspections of the product which was being manufactured on her machine when she was approached by Manager A who pointed out the apparent untidiness of the complainant’s working area. The complainant responded and informed Manager A that she would tidy the area up when she had completed her quality inspection of the product. It would appear that Manager A accepted this and the complainant continued on with her quality inspections of the product. The complainant noticed what appeared to be a defect on a sample bottle which was shown to Manager A and after examining the product said it was okay.

The complainant then took two other bottle samples to another work station in order to carry out a leak test. The complainant alleges that it was at this time that Manager A approached her in an aggressive manner and with a raised voice, which the complainant found threatening, started telling her that he was the manager and that she was the employee and demanded that the complainant immediately tidy up the work area. The complainant attempted to inform Manager A that she had been instructed by her Group Leader that her first priority on starting her shift was to carry out an inspection of the product being manufactured on her machine and when this was okay to then set about carrying out such other tasks as tidying up her work station, etc. However, the complainant alleges that at this time Manager A started shouting at her which frightened and shocked her at which stage the complainant ceased carrying out the quality checks and began tidying the area around her machine.

During this tidy up the complainant noticed that a stacker required immediate attention and duly set about attending to this issue. At this time the complainant alleges that Manager A arrived back at her machine with a another Manager and Manager A began shaking his telephone into her face, while pointing at her and talking in a raised voice. The complainant alleges that she could not get a word in while Manager A was addressing her and when she returned to cleaning the area he ran after her and started yelling at her again while pointing his finger aggressively in her face. It is alleged then that Manager A grabbed the sweeping brush from the complainants hands and started to sweep the floor as a demonstration as to how it should be done.

2.4. The complainant was extremely upset by her manager’s actions and became very stressed because of the way she was treated.

2.5. The complainant made a written complaint to her employer following this incident.

2.6. A meeting took place under the respondent’s grievance procedures on the 7th January 2015. The complainant was represented at this meeting by her shop steward. During this meeting the complainant “declined to partake” as she did not feel comfortable dealing with the matter without a translator being present. The respondent’s representative, Manager B, advised that he had an “expectation for grievances to be discussed in English.” In a letter Manager B acknowledged the complainant’s assertion that some conversations happening where the complainant could not fully understand what everyone was saying.

2.7. A complainant’s letter to the respondent confirms that the complainant had requested an interpreter prior to attending the grievance meeting on the 7th January 2015 and even offered to bring and pay for her own interpreter. In this letter the complainant states that she did not fully understand what was said at the last meeting. Despite this request and concern the respondent offered the complainant another opportunity to meet with them to detail the areas where the complainant did not have a full understanding but did not concede to the use of an interpreter and advised that representation consists of shop steward or shift representative or work colleague.

2.8. The complainant submits that she wrote once more, with the assistance of an interpreter, to the respondent on the 3/2/15. The complainant challenged Manager B’s assertions that she “declined to partake” in the meeting held on the 7/1/15 and used this instance as an example of why she believed that she needed an interpreter. The complainant reminded the respondent in this letter that she offered to pay for an interpreter and could not see how clarity could be provided at another meeting without the assistance of an interpreter.

2.9. Further meetings under the grievance procedures took place on the 5th and 10th February 2015 where the complainant, while represented by her shop steward, was denied the use of an interpreter. A letter from the respondent dated 18th February 2015 confirmed that the complainant’s allegations against her manager were not upheld.

2.9. The complainant appealed the outcome of the decision set out at in relation to her grievance raised initially on the 22/12/14. The complainant states that she was “very disappointed at the decision made” and feels that it, the process, “was not fair” and that she “was not heard”. At paragraph 2 of this letter the complainant states the following;

“I have requested an interpreter from the very beginning in order to resolve this matter as soon as possible and to be on equal terms with everyone at the meetings relating to my grievance. My fear was that I would not be able to explain myself clearly at the meetings and that I would not be able to understand the process and its terminology fully. I had to hire an interpreter in order to express my position and give feedback after the meetings at least in writing. But during the meetings I was not in a position to answer questions in a good command of English and therefore I did not feel equal in terms of language.”

Once more the complainant requested the employer to provide her with an interpreter for further meetings or at least to allow the complainant to bring her own interpreter.

2.10. On the 24th and 25th March 2015 a further two meetings took place to hear the complainants appeal of the grievance outcome. At this stage 2 appeal hearing(s) the complainant was once more denied the assistance of an interpreter and the respondent justified their position in denying the complainant access to an interpreter following consideration of;

(1) the complainant’s service with the respondent, and,

(2) the complainant’s interaction with company personnel in relation to general matters and your job function. The respondent went on to state that they came to the conclusion that the complainant had sufficient English to proceed without an interpreter. The decision of the respondent issued on the 18th February 2015 in relation to the complainant’s grievance was upheld.

2.11. The complainant appealed this stage 2 outcome to a Senior Manager, on the 7/4/15. In this letter of appeal the complainant once again raised the issue of the respondent’s refusal to allow her the use and assistance of an interpreter during the grievance process and at paragraph 2 states that “…I feel that I am not adequately represented because of a language barrier.” The complainant goes on to state that “…I am the only person there with a limited knowledge of English, which leaves me in a more vulnerable position in comparison to others.” The complainant addresses the respondent’s assertions by stating that she agrees that she can communicate in relation to general matters with no problems but does not agree that this is the same as dealing with a grievance and the grievance procedures, having not found herself having to do so previous to this incident. The complainant points out “I believe that this is a very sensitive matter which requires specific approach, involves specific terminology which I am not familiar with in English. I again have to hire an interpreter myself every time I need to address my points to you in writing.”

2.12. A stage 3 appeal hearing under the respondents Procedure for Resolving Disputes took place on the 11th May 2015 and once again the complainant was denied access to and the assistance of an interpreter during the hearing. The respondent states in a letter dated 12 May 2015 “I acknowledge your requests to have an interpreter present during the various stages of the grievance process. However, I can confirm that the company conducts all its internal procedures in spoken and written English and we do not provide for the use of interpreters or sign language experts during such processes.” The Respondent further states “It is a requirement that all employees are able to understand written and spoken English in order to meet the requirements of their contract of employment.”

Despite this the respondent notes “…that throughout this meeting you explained that your understanding of written and spoken English is limited and it was clear that you were unable to understand much of the conversation even though there was no background noise and only one person speaking at any time.” The respondent concludes “While I accept that you are unable to participate fully in the Procedure for Resolving Disputes due to your limited knowledge of spoken English I believe you have been able to clearly state your grievance and it has been thoroughly investigated.” Despite the shop steward having no knowledge of the Latvian language the respondent states “I also believe that the shop steward has been able to fully represent you at each stage of this process to ensure that you have had a fair hearing of your grievance.”

2.13. On the same day, 12 May 2015, the respondent sent a second letter to the complainant. This letter refers to the stage 3 meeting held on the 11 May 2015 and states; “It was clearly evident during this meeting that you have literacy problems in relation to spoken and written English and this may also be leading to problems with your numeracy skills. It is a requirement that all employees must be competent to fulfil their contract of employment and a basic requirement for competence is a minimum level of literacy and numeracy. I am concerned that your level of literacy in spoken and written English is not sufficient for you to fulfil your contract of employment and it is my intention to require you to attend a literacy test.” The respondent in this letter goes on to state; “This test will be used to measure your level of literacy in spoken and written English and if it is found that your literacy level is low then the company will reserve the right to terminate your contract of employment.”

2.14. The complainant appealed the Stage 3 grievance decision and this Stage 4 appeal was heard on the 3/6/15. The complainant was represented by her shop steward and her union official. The complainant was not afforded the opportunity to have an interpreter present. This issue was raised once again at this meeting but the respondent’s response was as per his letter of 4/6/15.

“I have already explained my position on the use of interpreters during the last meeting and confirmed this in my letter of 12 May 2015. The company expects each employee to be able to communicate in English and a minimum level of numeracy and literacy is required to carry out your normal day to day duties. For disciplinary and grievance issues the company permits the use of representatives to ensure employees understand and are able to follow these more formal procedures.” The respondent went on to refuse the complainant’s appeal.

2.15. The complainant wrote to the respondent on the 14/6/15 setting out her disappointment with the Stage 4 decision. Once again the complainant referred to her frustration with the process with not being fully aware of everything that was being said and the fact that she could not say everything that she wanted to say due to the lack of an interpreter. The complainant states that; “I was not able to fully express myself because of my limitation with English in this difficult and complicated process.”

The complainant submits that she then highlighted the inconsistent manner by which the respondent addressed her so-called literacy issues by reminding them that during the meeting held on the 11/5/15 that he had assessed her English proficiency at 30% while in the Stage 4 letter at Appendix 13 he states that the complainant was “able to clearly and fluently explain in English the events of 18th December 2014.”

The complainant then asked if this literacy test was going to be apply to her only or to the rest of the employees whose first language is not English. The complaint concluded this letter by stating; “I also believe that if I was allowed to have an interpreter for this process, it would have saved everybody time and would eliminate misinterpreting.” All the letters to the respondent from the complainant were written with the assistance of an interpreter employed by the complainant herself.

2.16. SIPTU, acting under the complainant’s instruction referred the matter into the Rights Commissioner Service on the 13/7/15.

2.17. The respondent wrote to the complainant on the 20/7/15 in relation to an English test. Once again the respondent states that; “I am concerned that your level of literacy in written and spoken English could be adversely affecting your ability to fulfil your contract of employment.” This letter also refers to the fact that a recent hearing test on the complainant confirmed that she was not suffering any hearing loss that may limit her ability to understand spoken English.

2.18. On the 30th July 2015 SIPTU wrote to the respondent in response to the letter at Appendix 15. In this letter SIPTU set out its concerns with the complainant having to partake in an English proficiency test and reminded the respondent that over 10 years of employment no member of the respondent’s management team had any issue with the complainant’s communication skills. Notwithstanding, SIPTU informed the respondent that the complainant would participate in the English test under protest.

2.19. The following day SIPTU emailed the respondent requesting details of the Literacy Test. The respondent replied stating that the test was a standard on-line test.

2.20. The complainant contacted SIPTU on the 7/8/15 confirming that she got her results from the literacy test. The complainant scored 47%; 71 correct answers out of 150. The complainant advised SIPTU that she found the test to be very difficult as she is a self-taught English speaker and felt humiliated and was upset by this process of having to do the test. The complainant was not sure whether or not this result meant that she would lose her job or if the respondent would demote her.

2.21. On the 12/8/15 SIPTU received correspondence from the Rights Commissioner Service confirming that the respondent had objected to a Rights Commissioner Investigation into the respondent’s refusal to allow the complainant access to an interpreter during the grievance procedures and into the personal cost engaging an interpreter placed on the complainant.

2.22. SIPTU sent an email to the respondent on the 25/8/15 requesting confirmation on whether or not the complainant passed the literacy test. On the 27/8/15 the respondent confirmed by email that the test was not a fail or pass type and its only function was to determine the complainant’s proficiency in the use of English. The respondent stated that the complainant’s proficiency in English is low, considering the length of time she spent in Ireland and concluded by inviting SIPTU into consultation to develop a language policy and to look at ways to improve the English proficiency of existing employees.

2.23. Following further consultation with the complainant SIPTU referred this matter into the Workplace Relations Commission on the 4/9/15 for the attention of the Equality Tribunal.

.

SUMMARY OF RESPONDENT’S CASE

3.1 It is the respondent’s position that the facts as set out in the complainants Submission and are in the main not disputed. However this Submission is not to be taken as an assumption that the Respondent agrees with all the facts set out in the Complainant’s Submission.

Despite the myriad of claims by the complainant the dispute is somewhat of a net issue in that it is not denied that the Respondent refused the Complainant an interpreter during the grievance process. It is the Respondent’s submission however that this does not amount to discriminatory treatment within the context of Council Directive 2000/43/EC(Race Directive) and/or the Employment Equality Acts 1998-2004.

Direct Discrimination

3.2 In regards to the issue of direct discrimination it is the respondent’s submission that there is no different treatment on the grounds of race and that is to say the Respondent deals with all employees regardless of race similarly in that neither English speakers or non-English speakers are treated differently. All employees must deal with their grievances in accordance with the grievance procedure laid down on the Works Agreement. It is respectfully suggested therefore on the basis of the definition in the Race Directive and in the Employment Equality Acts that there is no direct race discrimination.

Indirect Discrimination

3.3 It is accepted that the Labour Court consistently hold that the requirement from employers that employees be confident in a particular language is prima facia indirectly discriminatory on the grounds of race, unless it is objectively justified it is likely to place such employees at a disadvantage (Noonan Services Limited v A Worker EDA 1126). In this instance however the Respondent does not require employees who utilise the grievance procedure to be competent in English. The issue at hand is whether a Company is either (a) obliged to provide an interpreter or (b) the employee is entitled to bring an interpreter with them, in pursuit of their grievance. It is unclear which claim the Complainant is actually making, however, it appears to be the latter. Notwithstanding and without prejudice to this the Respondent submits that their denial of an interpreter either at the Respondent’s expense or otherwise is objectively justified, it is in pursuance for particular aim of the business and the means chosen are appropriate and necessary to that end. In this regard the Respondent raises the following points:

(a) The Respondent has a long established Works Agreement in place with the Union SIPTU. That agreement is detailed in respect of how grievances are managed in the workplace and on to third parties, if appropriate. It is a legitimate aim of the business that the grievances are dealt with fairly and consistently across the board to ensure consistency of treatment, cohesion in the workplace, to eliminate favouritism, to ensure that all employees are dealt with equally and fairly. The provision of additional support based on race would not be consistent with the necessity to promote fairness and objectivity among the workforce.

(b) The Works Agreement is clear in that the Employee has the support (depending on the stage of the procedure) by either a shop steward and/or at a later stage a full-time union official. This agreement was negotiated with SIPTU a number of years ago and has stood the test of time. The Respondent cannot therefore unilaterally change the way in which the grievance procedure is operated and neither can SIPTU without it being renegotiated and put to all members. It is a legitimate aim of the business that the grievance procedure is operated properly and consistently and any changes in this to facilitate a claim being made by the Complainant would lead to all other elements of the Works Agreement being put at risk.

3.4 Without prejudice to the above the Respondent is cognisant of the decision of the Labour Court in Campbell Catering Limited v Rasaq (2004) ELR 310, however, the following distinction can be made in this case:

(a) Rasaq dealt with an issue of discipline. In that instance a penalty up to and including dismissal could have been imposed on the employee and indeed dismissal was imposed in that instance. The matter at hand however concerns a claim on behalf of the Employee ie. a grievance, as distinct from a penalty being imposed on her. As such, the Respondent submits that the situation is radically different.

(b) It is further submitted that evidence is required from the Complainant to demonstrate that she was denied something that an Irish worker had or could be assumed to have received (see Wojciechowski v. Tesco Ireland Limited DEC-2011-148). In this instance no such comparison can be made in that the Complainant was not denied something that an Irish worker had received.

4. FINDINGS & CONCLUSION

4.1 I have to decide if the complainant was discriminated against in relation to her conditions of employment and harassed the ground of race and if she was subject to victimisation. In reaching my decisions I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.

4.2 Section 85A of the Act 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.

4.3 In the instant case the chronology of events and the substantial facts are in agreement. Specifically the complainant repeatedly expressed a request for an interpreter for the purposes of participating in a grievance that she had taken against her manager but the respondent denied such a request on the basis of the reasons they have submitted at 3.3 above. It is also agreed (from the 11 May 2015 onwards) that there are concerns about the complainant’s language ability. The Senior Manager who participated in the appeals process gave direct evidence at the hearing of this complaint that he reached the conclusion during an appeal meeting with the complainant that her English may not be adequate to perform her duties. He gave direct evidence that he instigated the process whereby the complainant was then sent for assessment.

4.4 It is at this point that the respondent finds itself in a contradictory position in that it

(a) Believes the complaints English ability is in doubt regarding her ability to carry out her contract of employment.

(b) Believes that her level of English is sufficient to participate in the grievance process despite her repeated protests.

I find that it was apparent to the Senior Manager at this point that the complainant was not capable of participating in the grievance process and he should have allowed for an interpreter and restarted her grievance procedure.

4.5 The Senior Manger gave direct evidence of the detail of the objective justification at 3.3 above. He told the hearing that this policy would also prevent employees with hearing disabilities from using sign language interpreters. While this clearly discriminatory practice is not before me in this case and is related to a different ground, it highlights perfectly why the respondents policy at 3.3. (a) and (b) above demonstrates a complete misunderstanding of the requirements of the Acts.

4.6 It is well established that employers have the right to enforce a policy of one common language in the workplace. This policy is not at issue in the present case. The complainant’s ability to speak English is inherently connected to her nationality. Native English speakers do not need an interpreter to participate in an English language based process. Therefore the respondent’s policy, agreed with a union or not, that prevents the services of an interpreter for a grievance procedure regardless of the English ability of the worker places non Irish workers at a significant disadvantage and is indirectly discriminatory.

4.7 I have no doubt that the complainant felt humiliated and belittled by the events of 18th December 2014 and was further humiliated over a long period by the direct effects of her employers discriminatory policy and was upset by the failure of her employer to listen to her. I accept that she had no recourse but to lodge a complaint with the Equality Tribunal.

Harassment

4.8 Section 14 of the Employment equality act sets out the conditions under which harassment in relation to access to employment can take place. It provides as follows: -

(7) (a) In this section—

(i) references to harassment are to any form of unwanted

conduct related to any of the discriminatory grounds,

and

(b) Without prejudice to the generality of paragraph (a), such

unwanted conduct may consist of acts, requests, spoken

words, gestures or the production, display or circulation

of written words, pictures or other material.

4.9 The complainant submits that the act of harassment relates to being sent for assessment by the respondent. She submits that she felt humiliated as she was the only person being treated in this manner. All parties were in agreement that the complainants standard of English was as issue. In such circumstances I do not find that the act of sending the complainant for assessment can not be construed as harassment. Therefor I also find that it does not amount to victimisation under the Acts.

5. DECISION

5.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2011. I find that

(i) the complainant was subject to discrimination on the ground of race and her conditions of employment were affected.

(ii) the complainant was not subject to victimisation in terms of section 74 (2) of the Employment Equality Acts.

(iii) the complainant was not subject to harassment on the ground of race.

Therefore, I find for the complainant.

5.2 I hereby order, that

(a) the respondent pay the complainant the sum of €8000 in compensation for the effects of the discrimination. This figure represents compensation for infringement of her rights under employment equality legislation in relation to discrimination and does not include any element relating to remuneration and is therefore not taxable.

____________________

Peter Healy

Adjudication Officer

14th July 2017