The Language Barrier in the Workplace
Retailers, as employers, are obliged under law to ensure that all their staff, irrespective of language, know their employment rights and fully understand key documents including the contract of employment, disciplinary and grievance procedures and more.
Print1 May 2008
It will come as no surprise that Ireland, which was once a country of emigration, has become an economy largely dependent on the labour of non-Irish national workers. This is especially notable in the services sector.
The integration of non-Irish workers into the Irish economy raises many issues including social and cultural inclusion, as well as employment issues.
The purpose of this article is to highlight just one of these issues; being the language barrier that can be encountered in the workplace. The 2007 figures from the Department of Enterprise Trade and Employment (the Department) show that employment permits were granted to nationals from over 150 different countries last year. This simply highlights the fact that in Irish workplaces, a vast number of languages are spoken, and it highlights the need to address language difficulties in the workplace.
Where do our migrant workers come from?
The 2006 National Census indicated that non-Irish nationals now account for 1 in 8 workers in Ireland. This might seem a startling statistic, but is easily explained when we consider the large influx in recent years of migrant workers from the European Union (“EU”) Accession States, such as Poland. Such workers have played a significant role in the growth of the Irish economy overall, and in particular, the construction sector.
In addition, the Department granted some 9,505 employment permits (both new and renewal permits) in the services sector alone in 2007 to nationals from non-EU countries.
One should also remember that even prior to the more recent influx of workers from the EU Accession States, there was already a notable amount of migrant workers in Ireland from the longer-established EU Member States, such as Spain and France. Add to that the individuals who can legally work in Ireland without the need for an employment permit (e.g. students permitted to work on a part-time basis), and it becomes easier to see how we arrive at the 1 in 8 figure quoted above.
Obligations you owe to your non-national workers
The issue of exploitation of migrant workers has been well publicised in the media in recent times. It is, therefore, becoming increasingly important for employers to understand and act upon their obligations with respect to migrant workers. Employers must go further than simply treating migrant workers in the same way as Irish nationals where there is a language difficulty.
There is also a statutory obligation to provide some key health and safety documentation to all employees in a manner which can be readily understood by them.
One of the areas which has been previously highlighted by the Labour Relations Commission is that many migrant workers have a lack of knowledge of their rights and entitlements and that the main issues which are predominantly brought before the Rights Commissioner Service are in relation to pay and conditions. Many migrant workers are also not properly informed of the procedures for renewing their employment permits. The Department now provides an employment rights guide when issuing all new employment permits. Whilst this document is provided in English, it does go some way to addressing the issue. It is also of note that the newly established National Employment Rights Authority (“NERA”) now provides a significant volume of information on its website, not only in English but also in twelve other languages.
Whilst most employers treat their employees in a positive and fair manner, regardless of their race or nationality, the case-law discussed below suggests that this is a topical issue and that disputes regarding the language barrier in the workplace continue to take place.
Lessons to be learnt
It is clear from the recent case law that the Irish employment law enforcement bodies are imposing a positive obligation on employers to ensure that non-national workers clearly understand the terms and conditions of their employment. As such, it is arguable that key documents including the contract of employment, disciplinary and grievance procedures, as well as health and safety policies, should be translated into their native language where there is a perceived language difficulty. This is particularly significant in the retail sector where migrant workers form a large percentage of the total workforce.
In relation to health and safety policies in particular, the Safety, Health and Welfare at Work Act 2005 goes further and imposes an express obligation on employers to bring the Safety Statement to the attention of the employees in a ‘form, manner, and as appropriate, language that is reasonably likely to be understood’.
In summary, employers who regularly hire non-national workers should always ensure that the individuals have a good grasp of the English language or in the absence of same, that key employment documents are translated into the employee’s native language.
Recent cases that went to court
In the case of Puga –v- University College, Dublin, a Spanish national brought a claim of racial discrimination against her employer. In this particular case, the Spanish national worked as a catering assistant and argued that she was being treated differently to Irish staff by being required to wear a uniform and work overtime, amongst other things.
The Equality Tribunal held that there was no evidence of racial discrimination and that she was treated in a similar way to Irish staff. She had been provided with a Spanish translation of her key employment documents and should, therefore, have been aware of her obligations under same e.g. to wear a uniform.
In the case of Rasaq –v- Campbell Catering, the Labour Court held that the complainant was discriminated against on the grounds of race during an investigation process. In particular, the Labour Court highlighted the particular vulnerability of migrant workers and stated, “It is clear that many non-national workers encounter special difficulties in employment arising from a lack of knowledge concerning statutory and contractual employment rights, together with difficulties of language and culture”.
The Labour Court strongly recommended, “that companies employing non-nationals recognise difficulties that may arise, provide proper induction courses and that they make resources available to enable them to deal with any social and cultural differences which may arise in these situations.”
This certainly goes further than simply complying with an employer’s statutory obligations e.g. to provide the employees with their terms and conditions of employment etc. Unfortunately, no guidance has been given as to the level of resources which would be expected and whether exceptions would be made for small employers of limited resources e.g. if this posed a significant financial burden. However, it is hoped that a pragmatic approach would be taken in such circumstances and it is likely that a greater expectation will be placed on larger organisations with deeper pockets.
In the case of 17 Complainants –v- Eamonn Murray, trading as Kilnaleck Mushrooms, a dispute arose between the parties and it was alleged that the employer had unfairly dismissed the employees in question. The Employment Appeals Tribunal (“EAT”) held in favour of the employees.
Importantly, as part of its reasoning, the EAT stated that the dismissals were unfair due to the migrant workers’ limited knowledge of the English language. The case is particularly significant, as the EAT awarded the maximum of two years’ salary to each employee. Whilst the level of salary in this particular case was relatively low, it is indicative of the EAT’s attitude to abuses of migrant workers especially where there are language difficulties.
More recently in the case of Ning Ning Xhang –v- Towner Trading, trading as Spar Drimnagh, the complainant alleged that she was discriminated against in relation to her conditions of employment and that her dismissal by her employer was on the grounds of race, contrary to the Employment Equality Acts 1998 to 2007.
It was alleged that the complainant received a text message from her employer stating that she had been caught on CCTV camera stealing bus tickets, and that whilst a meeting took place with her employer that evening, that no proper investigation took place, and that nor was she advised of her rights at any stage. It was further argued that appropriate disciplinary procedures had not been followed and there had been a failure to consider whether or not she needed any special measures, due to her language difficulties.
The Equality Tribunal referred to the case of Campbell Catering, above, which stated that, “In the case of disciplinary proceedings, employers have a positive duty to ensure that all workers fully understand what is alleged against them, the gravity of the alleged misconduct and their right to mount a full defence, including the right to representation. Special measures may be necessary in the case of non-national workers to ensure that this obligation is fulfilled and the accused worker fully appreciates the gravity of the situation and is given appropriate facilities and guidance in making a defence.
In such cases, applying the same procedural standards to a non-national worker[s] as would be applied to an Irish national, could amount to the application of the same rules for different situations and could itself amount to discrimination.” The complainant in this case was awarded significant compensation in the amount of E15,000 for the discriminatory treatment suffered.
© Matheson Ormsby Prentice 2008
The information in this article is not intended to provide, and does not constitute, legal or any other advice on any particular matter, and is provided for general information purposes only. This legal update is compiled by Kerry Hiles of the Employment Pensions & Benefits Group at leading corporate law firm, Matheson Ormsby Prentice.
For more detailed legal advice please contact Kerry Hiles at Matheson Ormsby Prentice, Solicitors, 70 Sir John Rogerson’s Quay, Dublin 2, by telephone on 01 232 2000 or by email at kerry.hiles@mop.ie
Further information on the firm is available at www.mop.ie.
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