Insisting employees use English in the workplace
Many businesses in the UK, particularly those in the agriculture, care and hospitality sectors, are now using foreign workers to fill skill gaps. However, such employers may find that they have to address legal implications around the use of numerous different languages in the workplace. If they don’t, they could be facing heavy financial penalties and a damaged reputation if they are the subject of a legal claim from an aggrieved employee.
What does the law say?
The Equality Act 2010 extends protection against discrimination to employees and others on the grounds of race, which is defined in the Act as including colour, nationality and ethnic/national origins.
Treating somebody less favourably than others on the grounds of race would be direct discrimination. However, less easy to define is indirect discrimination, which happens when a “provision, criterion or practice” is applied to every employee but which disadvantages a particular group within the workforce.
An employer is allowed to indirectly discriminate against an employee or employees if it can be shown that to do so was a “proportionate means of achieving a legitimate aim.” In order to do this, it must be shown that there was a very good reason for doing so and that there was no alternative course of action available that was less discriminatory.
So, if an employer announced that all its employees needed to have excellent English skills, they would be breaking the law if they could not provide a justification for this. Similarly, a direction to communicate within the workplace solely in English would require the employer to show why it was important for the company that this should happen e.g. safety issues required all employees to be able to understand instructions issued to them.
The language requirements will depend on the type of role – if it is a customer-facing job, such as reception, telephone sales or customer relations, the likelihood of an objective justification succeeding would be higher than if the role was something like a production line job, where the English skills required would be much more basic.
If the English-only requirement is introduced and an employee is dismissed for breaking it, a claim for unfair dismissal could result.
The affected employee could argue that they had been dismissed on the basis of race and if that were the case, there would be no minimum qualifying service to bring an unfair dismissal claim. In addition, the level of compensation would have no limit.
If an employee is excluded from conversations by the use of a language that they do not know, they may be able to claim that they are effectively being bullied or harassed.
Looking at some relevant legal cases may help to clarify the issue:
A nursery school banned a member of staff, Mrs Jurga and other Polish colleagues, from speaking Polish at work, even during their breaks.
The employer told her and the rest of the staff that English was the only language to be spoken in the nursery. Mrs Jurga and another Polish worker brought a claim at the Employment Tribunal for race discrimination and was awarded £7,000.
A claim of indirect race discrimination was brought by a Mr Franco, who claimed that some of the line supervisors at his workplace conversed in Polish and this put him at a disadvantage as he did not speak the language.
He felt that all employees should be required to speak English all the time whilst at work.
However, the judge did not agree and said that ‘…to allow people who share a mother tongue to communicate in it is generally likely to lead to clearer communication and efficient management.” This counted as an objective justification and Mr Franco’s case failed.
In the case of Kelly v Covance Laboratories Ltd, a Russian national was told not to speak Russian whilst at work. She claimed that this amounted to racial discrimination.
The Employment Tribunal rejected her claim, saying that her employer would have given the same instruction to any other employee in the same circumstances.
The Employment Appeal Tribunal agreed, saying that her treatment was not connected with her nationality. Instead, there were valid reasons for the employer taking the steps they did, including a suspicion that she was involved in animal rights activism (the employer was an animal testing establishment) and was using Russian to conceal her activities from her employer.
Practical pointers and suggestions
We have already discussed, with regard to indirect discrimination and objective justification, that the employer must show that there are no less discriminatory means of reducing the disadvantage to a particular group or person. What might these means be?
The employer could consider what level of English might be needed for the role to be carried out properly. A justification for this decision will be needed if there is any claim arising from it.
If it is found that the role is one for which only basic English is required, the employer could consider English language classes, or the use of sign language to convey necessary instructions.
Safety signs, notices and communications in each of the languages used by the workforce can be used around the premises.
The employer should put in place policies which deal with the issue of linguistic exclusion (when employees use a language in front of another employee that the latter does not understand), respect and consideration. Training should be put in place to cover the requirements of the policies.
The employer should encourage workers to use a common language when involved in work activities. Depending on the composition of the workforce, this may not necessarily be English.
If some employees are multi-lingual, they can be recruited as interpreters at meetings and discussions between workers of different linguistic backgrounds.
Language Requirements in the news
In August 2015, the Government announced that from September, people who do not speak fluent English would be barred from public sector jobs in England, Scotland and Wales if those posts involved direct contact with the public.
The British Medical Association recently (2014) announced that it plans to introduce an English language competency test for all doctors and nurses who wish to practise in the UK.
This is despite the requirement under EU law that such personnel should have the right to work in the UK without the need to speak English to a satisfactory level.
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