Employment Equality Acts 1998–2015: A CASE STUDY ON LANGUAGE POLICIES WITHIN THE WORKPLACE

Introduction:

The Employment Equality Acts 1998–2015 prohibit discrimination in a wide range of employment and employment-related areas. These include recruitment and promotion; equal pay; working conditions; training or experience; dismissal and harassment including sexual harassment.

The legislation defines discrimination as treating one person in a less favourable way than another person. There are 9 grounds for discrimination, including:

• Gender: this means man, woman or transgender

• Civil status: includes single, married, separated, divorced, widowed people, civil partners and former civil partners

• Family status: this refers to the parent of a person under 18 years or the resident primary carer or parent of a person with a disability

• Sexual orientation: includes gay, lesbian, bisexual and heterosexual

• Religion: means religious belief, background, outlook or none

• Age: this does not apply to a person aged under 16

• Disability: includes people with physical, intellectual, learning, cognitive or emotional disabilities and a range of medical conditions

• Race: includes race, skin colour, nationality or ethnic origin

• Membership of the Traveller community.

What counts as discrimination in the workplace?:

Discrimination is defined as less favourable treatment. An employee is said to be discriminated against if they are treated less favourably than another employee is treated, has been treated or would be treated, in a comparable situation on any of the above 9 grounds.

Discrimination can be direct or indirect.

To establish direct discrimination, a direct comparison must be made. For example, in the case of disability discrimination the comparison must be between a person who has a disability and another person who has not. Or, between two people with different disabilities.

Indirect discrimination is when practices or policies do not appear to discriminate against one group more than another, but actually have a discriminatory impact. Indirect discrimination can also happen where a requirement that may appear non-discriminatory adversely affects a particular group or class of people.

Case Study:

As a consequence of the influx of foreign nationals to Ireland in recent years, legal professionals in the area of Employment Law are frequently coming across situations where they have to advise individual employees/ and indeed employers of foreign nationals as to whether a work policy is discriminatory or not.

One such query that we have been instructed to advise on, is ‘English Only’ policies within the workplace and whether they are discriminatory or not.

Case Law:

The Labour Court dealt with this ‘English language only policy’ issue in Aer Lingus v Kacmarek, & Ors, 2017/ EDA1712 wherein it found that the employer had indirectly discriminated against workers whose first language was not English. While the employer was able to objectively justify it’s written policy, the Labour Court did expressly state that “it would be oppressive to require staff to speak in English” during their official breaks.

The Labour Court decision is of particular relevance in situations where employers seek to introduce “English Only” policies during official breaks during the work day.

In the earlier Labour Court decision of Microsemi Ireland Ltd v Stawarz & Ors 2015/EDA157, it was found that the employer had not discriminated against the employees with a written English only policy as it was objectively justifiable. However, the Court again expressly noted that “speaking in one’s native language was permitted within the site when employees were not working, i.e. on breaks, going to and from breaks etc

Conclusion:

In terms of enforcing such policies, Employers should ensure that there are comprehensive written policies in place and that same should be made available to all employees upon induction or as soon as practicable thereafter. Allowances for competence of spoken English does need to be considered as does ensuring that the employee understands the policy.

It is essential within such policies that there is no prohibition of employees from speaking their native language or any other language other than English while on their rest breaks, as this cannot be determined from the available to case law to be objectively justified.

About the author: Kevin Sherry is an Associate Solicitor in the DGOD litigation department and can be contacted at sherryk@dgod.ie