The Brief

05.12.2008

More Red Tape for Employers - The cost of equality

A decision of the Equality Tribunal in relation to discrimination will have far reaching consequences for businesses employing non national.

The Tribunal has held that employers are obliged to, not only provide contracts to their employees (a legal requirement), but also to have those documents explained and translated so they can be and are understood.   This decision is likely to cost employers.
On 28 April the Equality Tribunal (ET) gave a decision in a case taken by 58 workers against their employer. The claims related to discriminatory treatment, discriminatory dismissal, harassment and victimisations. The claimants also sought equal pay on the grounds of race. The 58 claimant were foreign nationals and employees of one particular company.
EQUAL PAY
On the issue of equal pay the claimants claimed that they were entitled to equal pay and equal remuneration with the named comparator who was an Irish national. The respondent submitted that the named comparator did not perform “like work” and also that there were “other grounds other than race” for the difference in pay. The Equality Tribunal found in this case that other grounds than race existed for the difference in pay and did not address the issue of like work.
CONTRACTS OF EMPLOYMENT
It was argued by the workers that they had not received Contracts of Employment. The Company denied that and argued that all but one of the workers did receive a Contract of Employment. The workers stated that they were treated less favourably on the grounds of race in relation to their Contract of Employment because such Contracts were in English and not in their native language. The Company replied that there was no requirement in law to provide employees with Contracts of Employment which are in their native written language. The Equality Tribunal sighted a previous Labour Court case which held that employers had a positive duty to ensure that all workers fully understand what is alleged against them.
From this the Equality Tribunal argued that there is an onus on the employer to provide its non national employees with Contracts of Employment in a language which is understandable to them. It noted that the Company in this case claimed that this was an unreasonable burden and further noted that other company documentation was in a common language i.e. Russian. The Equality Tribunal therefore had to consider whether it was reasonable that the employer should provide its employees with Contracts of Employment in either English or Russian or alternatively if this was not possible the employer should have undertaken to have the Contract of Employment explained to all employees irrespective of nationality. The Tribunal decided that a translator acting on behalf of the employer, and not another employee, should explain the terms of the Contract of Employment to the employees and such employees should be asked to sign a document confirming that the Contract had been explained to them.
In the case in hand the Equality Tribunal also noted that even though the Contract of Employment had been explained to the employees by another non national employee, the complainants were treated less favourably than Irish employees.
SAFETY DOCUMENTATION
The workers also claimed that the employer had failed to provide them with safety documentation in a language that they understood and failed to provide proper safety training and as such this constituted a less favourable treatment on the grounds of race. The employer did provide some safety documentation to the workers in Russian and did provide two weeks training given by another fellow employee who spoke Russian and each of them was informed that an interpreter would be available to translate the safety statement should same be required. Also, the employer organised a health and safety seminar at which an interpreter was present but only 5 of the claimants attended.
The Equality Tribunal held that in terms of the training employees received that this should be documented and all employees irrespective of nationality should be obliged to sign a document confirming that they have received training in a language which is understood. The Equality Tribunal also held that there is onus on the employer to ensure that all safety documentation was set out in whatever language employees would understand and finding that this was not the case held that the workers were treated less favourably on the grounds of race as all safety documentation was not translated into a language they understood.
The employer was ordered to pay each of the worker compensation for the discriminatory treatment. They also awarded substantial compensation to other workers for stress suffered for what was held to be a discriminatory dismissal.
The employer was further ordered to put clear procedures in place for ensuring that non nationals are clear in the terms and conditions of employment and all understand all safety documentation. They have to maintain better records of disciplinary meetings and provide training to management under the provisions of the Employment Equality Acts.
For further information contact Catherine O’Connor (coconnor@mjoc.ie) or Fiona Ormond (formond@mjoc.ie)

 

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