EDA1712

The Respondent operates an international airline. Part of its operation involves the packaging of food for consumption by passengers and staff of the airline. The Complainants are employed in that process in an area known as the Catering Department..

The Catering Department employs 228 staff from 14 countries. At the date of the Hearing the Department employed 32 Polish staff.

English is the business language of the Respondent and is the common language spoken by all employees. In its policy documents it states

• “Aer Lingus 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 submits that the policy is reasonable, necessary and proportionate. It submits that the multicultural and multilingual nature of the workforce requires that it adopt a common language which in this case is English. It submits that this is necessary for business efficiency, health and safety and inclusion reasons. It submits that its supervisors need to understand the interaction between staff to ensure that they are correctly following procedures and food safety and meeting hygiene standards. It points out that diet requirements for its staff and passengers are serious matters that, if incorrectly met can lead to serious illness or may even lead fatalities to passengers. Accordingly it submits that it must take all reasonable steps to ensure that its supervision is effective and appropriate. Understanding the exchanges between staff at work is an essential part of meeting that need.

It further submits that the use of various languages in the workplace could give rise to feelings of exclusion and isolation amongst staff from different backgrounds. It submits that staff are moved between different food packaging and processing stations. Where staff from a language group are positioned beside staff from another language group the possibility of achieving any meaningful level of integration or of preventing effective isolation from their work colleagues would be unmanageable if each of the groups were speaking amongst themselves in their native language. Accordingly in order to minimise the possibility of social isolation and optimise the possibility of integration the Respondent requires that all staff engage with each other in English whilst at work.

The Respondent submits that its policy is proportionately applied in so far as it does not require staff to converse in English whilst on official breaks from work. It does so because staff choose with whom they take their breaks but do not choose with whom they work. Accordingly the Respondent submits that it would be a disproportionate application of the policy to require staff to speak English whilst on official breaks from work.

The Respondent submits that its policy is also proportionality applied in that it does not discipline staff for speaking in their native language but rather notifies them of the policy requirement and provides training in its language policies.

Findings of the Court

The Court finds that the Complainants, in accordance with section 85A of the Act, have made out a prima facie case of discrimination on the race ground. The policy requirement to speak English at work affects people from different races, language groups and nationalities in different measure. Accordingly the Court finds that the policy is indirectly discriminatory against the Claimants who are Polish and whose first language is Polish and not English.

The question for the Court therefore is whether the policy is objectively justified.

InAndvzejecza, Komar and Others v Microsemi Ireland Limitedthis Court set out the test to be applied when considering whether a particular measure is objectively justified. In that case the Court 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.”

Heddigan J in An Post v Monaghan and Wade [2013] IEHC pointed out that the Court must in relation to the defence of objective justification, ask itself if the impugned measure is the minimum unfavourable treatment necessary to enable the employer obtain its objective.

In this case the Court is not satisfied that the requirement to engage in English at all times is the minimum necessary to ensure that the food preparation instructions are understood and being complied with. This objective could be met by requiring that staff engage in English with their supervisors on such matters and demonstrate to them that their instructions have been understood and are being acted upon.

However the second objective of the Respondent is to ensure that staff in a multicultural and multi lingual environment are fully integrated into the workforce irrespective of the first language of their work colleagues with whom they are assigned to work.

The Complainants submit that they would, if requested to speak English by one of their colleagues, happily agree to do so. If not so requested they should be permitted to converse about non work related matters in their first language.

The Court does not accept that submission. The Court finds that such an approach would place an intolerable burden on other workers to request their colleagues not to speak in their first language but instead to speak in English. There are many reasons why they might not do so such as reluctance to confront the group or fear of a possible adverse reaction no matter how unlikely such a reaction might be. They would not know in advance how their request would be met and whether their working environment might become difficult or intolerable as a result of such a request.

The requirement that staff speak in a common language while at work is a reasonable requirement in the circumstances in which there are such a large number of nationalities employed in a common area of work.

The Court is further supported in the view that the Respondent has adopted the minimum unfavourable treatment necessary to achieve this objective by its restriction of the policy to the workplace. The Respondent reasonably submits that staff in the workplace are assigned duties and have no choice as regards to the people with whom they are assigned to work. That is not the case while on break. Accordingly the Respondent does not require staff to speak English while on official breaks as they are free to choose where and with whom to spend that break. In such circumstances it would be oppressive to require staff to speak in English on such breaks and the Respondent has recognised this in the administration of its policy.

Finally the Court notes that the Respondent has adopted an educative rather than a disciplinary approach to the administration of the policy which the Court finds as reasonable and proportionate.

Accordingly the Court, for the reasons set out above, finds that the Policy in place in the Respondent company is discriminatory but that it is objectively justified within the meaning of the Act.

The appeal is dismissed.

The Court so decides.

Signed on behalf of the Labour Court



Brendan Hayes
8th May 2017______________________
JKDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.