EDA1732

The Adjudication Office found that the complaint was well-founded and awarded Ms Zimareva compensation in the amount of €8,000.

In line with the normal practice of the Court, the parties are referred to in this Determination as they were at first instance. Hence, Ms Zimareva is referred to as the Complainant and Boxmore Plastics Ltd is referred to as the Respondent.

Facts

The material primary facts of this case are not in dispute and can be summarised as follows:

The Complainant is of Latvian nationality. She is employed by the respondent for upwards of 13 years as a general operative.

On or about 18^thDecember 2014 an incident occurred at the Complainant’s workplace in consequence of which she made a complaint to the Respondent pursuant to its internal grievance procedure. In accordance with that procedure a meeting was convened by the Respondent to investigate the grievance. The meeting was attended by the Complainant and her Union representative.

The Complainant has a reasonable command of the English language. She nonetheless sought the services of an interpreter to assist her in presenting her case. The Respondent refused this request, claiming that the agreed procedure did not allow for the provision of such a service. It was pointed out to the Complainant that she could be accompanied by a shop steward or a colleague but not by any other person. The Complainant declined to proceed with the meeting in the absence of a translation service.

By letter dated 27^thJanuary 2017, the Complainant wrote to the Respondent claiming that she was unable to follow the proceeding at the meeting in question and again asking that a translation service be provided. The Respondent replied by letter dated 30^thJanuary 2015 in which it was acknowledged that the Complainant had difficulty in understanding what was said at the previous meeting. The Respondent offered to reconvene the meeting on 3^rdFebruary 2015. The Complainant continued to insist that she required the services of an interpreter in order to adequately advance her grievance. She informed the Respondent of her willingness to attend the proposed meeting on 3^rdFebruary 2015 and expressed the hope that the matter could then be resolved. The Complainant further indicated her willingness to cover the costs associated with the provision of translation services.
Notwithstanding the stance taken by the Complainant, the Responded maintained its position. By letter dated 18^thFebruary the Respondent informed the Complainant that her grievance had not been upheld. That letter went on to inform her of the internal avenues of appeal available. In accordance with the procedure, the Complainant appealed the decision on 9^thMarch 2015. In her appeal the Complainant placed reliance on the failure to provide her with translation services and her consequent inability to adequately advance her case.

A hearing of the appeal was held on 24^thand 25^thMarch 2015. By letter dated 26^thMarch 2015, the Complainant was informed that her appeal was unsuccessful. In that letter the Respondent stated,inter alia: -

• “In relation to the issue of an interpreter, I considered the following before our initial meeting a) Your service within the company and b) your interaction with the company personnel in relation to general matters and your job function. I came to the conclusion that you had sufficient English to proceed without an interpreter.”

• “I note that during the meeting you explained that your understanding of written and spoken English is limited and it was clear that you were unableto understand much of the conversation even though there was no background noise and only one person was speaking at any time.”

• “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”.

• “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”

A further appeal meeting was held on the 3^thJune 2015 under stage 4 of the internal procedure. By letter of the 4^thJune 2015 the Respondent informed the Complainant that her appeal failed. In this letter the Respondent asserted that the Complainant had been represented at all stages by the Union shop steward and they could find no grounds on which to believe that she had not been afforded the right to have her grievance properly heard. In relation to the use of an interpreter, it was stated that the Managing Director, who had heard the earlier appeal, concluded that:

“you were able to clearly and fluently explain in English the events of

18^thDecember 2014…”

Position of the Parties
The positions taken by the parties can be summarised as follows: -

The Complainant’s case

On these facts, it was submitted on behalf of the Complainant that she was discriminated against within the statutory meaning ascribed to that term. The Complainant relied upon the established principle of European Law that requires that different situations should be treated differently. In essence, the Complainant’s case is based on the proposition that in refusing to allow the attendance of an interpreter in the investigation of her grievances the Respondent denied her the opportunity to fully and adequately advance her complaints. It was submitted that such a facility is available to other employees in comparable situations whose command of the English language did not require translation.

Respondent’s case

It was submitted on behalf of the Respondent that English is the official language in which all employment related business is conducted in the workplace. To that end, the Court was told, it is a contractual obligation that all employees, irrespective of their first or native language, communicate through English in the discharge of their duties.
The Respondent told the Court that it followed the Company / Union agreement in relation to processing the Complainant’s grievance. The agreed policy provides for a union representative or a work colleague to attend a grievance meeting and makes no provision for the attendance of interpreters. The Responded submitted that the Complainant was treated no differently than all other employees who chose to pursue a grievance through its established procedures.

The Respondent submitted that the discrimination contended for by the Complainant could only be indirect. Consequently, it contends that a defence of objective justification is available to it. In that regard the Respondent relied upon the requirement to comply with a long established collective agreement with the trade union representing its staff, which limits representation in processing grievances to union representatives or colleagues of the person pursuing the grievance.

The applicable law

Section 6 of the Act prohibits discrimination on any of the discriminatory grounds. Subsection (1)(a) of that section provides: -

• (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where
  • (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”) which—
    • (i) exists,

      (ii) existed but no longer exists,

      (iii) may exist in the future, or

      (iv) is imputed to the person concerned,

    (b) a person who is associated with another person—
    • (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

      (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

A fundamental feature of the law on equal treatment is that it prohibits differential treatment on any of the discriminatory grounds. The law is directed at achieving substantive equality and its focus is on substance rather than on form.

In a line of authorities, the CJEU has held that discrimination can arise not only from the application of different rules to comparable situations but also by the application of the same rules to different situations (see Case C-279/93Finanzamt Koln-Altstadt v Schumacker[1995] E.C.R. I-225 par 30).

Discrimination can be direct or indirect. Article 2 of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, defines indirect discrimination as follows: -

• “Indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”

Section 85A of the Act provides for the allocation of the probative burden as between parties. Subsection (1) of that section provides: -

• “(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

• “The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

  It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

• • “The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

In submissions made to the Court, the Respondent rightly argued that the Complainant can only succeed if it is established that she was denied something that an Irish worker would have obtained in similar circumstances. That question can be readily answered in the Complainant’s favour if she was denied a fair hearing of her grievance, by being prevented from fully participating in the process, in circumstances in which an Irish worker would have had a fair hearing.

In this case the Complainant claims that she suffered discrimination on grounds of race, which includes nationality. The substance of the Complainant’s complaint is that her lack of linguistic skills, rather than her nationality,per se, gave rise to the disadvantage which claims to have suffered. Linguistic skill is clearly distinguishable from nationality.

The prohibition on any outside party attending a meeting under the internal process is obviously a rule of general application. It is self-evident that a person who is fully capable of communicating in the English language could fairly pursue a grievance and would not be disadvantaged by that rule. The net question upon which this case turns is whether the Complainant was denied a similar opportunity to fairly advance her grievance by application of the rule.

That principle of anti-discrimination law enunciated inSchumacherwas applied by this Court inCampbell Catering Ltd v Aderonke Rasaq15 [2004] ELR 310. In that case the Court held that a woman of African nationality, who had a poor command of English and was unfamiliar with Irish employment practice, was discriminated against by being subjected to the same disciplinary process as that applied to Irish workers in similar circumstances. The rationale of the Court’s decision was that the Complainant, Ms Rasaq, was subjected to a process which she did not understand whereas an Irish worker would have the benefit of a process that he or she would have understood.

On the facts of this case, it is clear that the Complainant did not believe that she could adequately participate in the grievance investigation process without translation services. The Respondent made seemingly contradictory statements concerning the Complainant’s capacity to follow and participate in the investigative process in issue, as is evident from the correspondence referred to earlier in this Determination. It is, however, of considerable relevance that the Respondent’s Managing Director in his letter dated 12^thMay 2015, the relevant passages from which are recited earlier in this Determination, acknowledged that the Complainant was “unable to participate fully in the Procedure for Resolving Disputes due to [her] limited knowledge of spoken English.”
It follows that in that respect alone, the Complainant was denied a process in which she could fully participate whereas others who are fully proficient in English would be afforded a process in which he or she could fully participate. That is a classic case of applying the same rules to different situations. That constitutes different treatment by application of the principle formulated by the CJEU inSchumacherand consistently followed in the jurisprudence of the Court of Justice and of this Court.

Indirect Discrimination

The prohibition on the attendance of an interpreter in a grievance investigation is a provision, criterion or practice in relation to employment, which puts persons whose proficiency in English is limited, at a disadvantage. It is also self-evident that persons who are not nationals of an English-speaking country are significantly more likely to have limited proficiency in English than those of a nationality where English is their first language.

Burden of Proof

While the observation above are of general application, the essential question in this case is whether the Complainant herein, in fact, suffered a detriment. In is in the context of that question that the application of s.85A of the Act becomes relevant. As previously noted in this Determination, the primary facts are not in dispute. However, an essential fact in issue is whether the Complainant was, in fact, inhibited in her capacity to fully participate in the investigative process as it was applied by the Respondent. It seems to the Court that the matrix of admitted primary facts are of sufficient significance to raise an inference that the Complainant was so inhibited and therefore subjected to a disadvantage.

It is clear that the Complainant insisted at all material times that she was unable to fully participate in the process without the benefit of translation. That was acknowledged by the Respondent. The manner and frequency with which the Complainant raised this issue is a fact of sufficient significance to raise an inference that she was disadvantaged to a material extent. Accordingly, the Court is satisfied that Complainant has established aprima faciecase of discrimination and that the burden of proving the absence of discrimination shifts to the Respondent. On the evidence, the Court does not accept that the Respondent has discharged that probative burden.
It follows from the foregoing that the Complainant suffered indirect discrimination by reason of the failure of the Respondent to facilitate her in fully participating in the grievance resolution process. Having so found, there remains the question of whether the prohibition of a translation service can be objectively justified.

The established jurisprudence shows that in order to avail of a defence of objective justification an employer must show that provision, criterion or practice: -

• 
  (a)Is unrelated to a discriminatory ground,

  (b)Corresponds to a real and legitimate need on the part of the undertaking,

  (c)Is an appropriate means of achieving that need and,

  (d)There are no less discriminatory means of achieving that need.

In these circumstances, the Court is satisfied that the stance adopted by the Respondent was wholly disproportionate to any claimed or perceived need to adhere strictly to the agreed procedures. It follows that its defence of objective justification cannot succeed.

Determination

For the reasons set out herein, the Court is satisfied that the Complainant was discriminated on grounds of race. The Respondent’s appeal cannot succeed and it is dismissed. The Decision of the Adjudication Officer is affirmed including the award of compensation in the amount of €8,000. That amount is for the effects of discrimination and is not in the nature of remuneration.

Signed on behalf of the Labour Court



Louise O'Donnell
CR______________________
30 November, 2017.Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.