With the diversity of workforces in the UK today, there will inevitably be many workers of different nationalities and with different languages and cultures. This will mean that employers may need to deal with issues regarding what language is used in the workplace, particularly if many workers do not have English as their first language.
One of the most important aspects of any ‘language policy’ that an employer adopts is not to discriminate against any workers under the Equality Act 2010 (compensation for discrimination claims at an Employment Tribunal are ‘uncapped’ so have no limit). This includes race discrimination, defined as colour, nationality, ethnic and national origins.
‘Less favourable’ treatment because of race would be unlawful direct discrimination. Indirect discrimination is harder to recognise – it needs a ‘provision, criteria or practice’ in place in the workplace, which applies to all, but which puts people in a certain racial group at a particular disadvantage.
If an employer required all its employees to have excellent English language skills, they would need to justify their need for this, otherwise it may be indirect discrimination (only indirect, not direct, discrimination is possible to be justified).
If an employer could not justify this requirement, the treatment would be unlawful for those who are not native English speakers, as they are less likely to be able to comply with the requirement. For example, if excellent English language skills were needed to perform the job satisfactorily then this could be justification, for example for a customer-facing job. If the job is not customer-facing, perhaps in a factory, then only basic English language skills may be needed to perform the role satisfactorily and safely (to understand what is required in the job).
However, what about general communication between the workforce, does this have to be in English too?
If an employer required all communication in the workplace to be in English, they would need to justify this so it is not indirectly discriminatory. This could be justified where it would reduce misunderstandings in terms of legal, health and safety or financial issues or promote good employee relations. English-speaking employees who do not understand what their colleagues are talking about in another language may be upset and feel excluded.
Three recent employment law cases highlight the complicated issues involved here:
- In Dziedziak v Future Electronics Ltd 2012, the Employment Appeal Tribunal found it was direct discrimination when the employer told Mrs Dziedziak not to “use her own language” (Polish).
- In P F Franco v Fyffes Group, a claim of race discrimination was bought by Franco, a Portuguese national. Franco claimed that some of the line supervisors where he worked had some discussions in Polish, which put him at a disadvantage as he did not share the characteristic (of speaking Polish). Franco was unhappy that not everyone was required to speak English all of the time. The claim did not reach tribunal as it was struck out at a pre-hearing review, as it was felt there were little prospects of success. The Judge found that Fyffes could objectively justify allowing the workers to speak amongst themselves in another language as “to allow people who share a mother tongue to communicate in it is generally likely to lead to clear communication and efficient management, and no sensible employer would try to suggest that two polish workers should not speak in Polish between themselves. Of course it is quite different when someone who does not speak that language is also party to the conversation”. The Judge took into account that Fyffes could demonstrate that their management team had reminded Polish speakers to consider the needs of those without the Polish language and that as it was a factory the workers did not require excellent English skills.
- In 2013 a Nursery School Teacher, Mrs Jurga was awarded £7,000 for race discrimination, harassment and victimisation by her Employer, Lavendale Montesorri Nursery. Mrs Jurga, a Polish national, was banned, along with colleagues, from speaking Polish at work, even during their breaks, with the deputy head of the school saying Polish was “one of those weird languages”. Mrs Jurga claimed that some of the children at the school were Polish and their parents spoke to her in Polish and asked her to speak to their children in their language; she said that it “was common for teachers who were able to speak a child’s first language to do so when it was in the best interests of the child, and this was in line with DfE guidance”. Mrs Jurga complained several times to the owners of the nursery in 2011 that she had been banned from speaking Polish. The owners responded by telling staff at a meeting that English was the only language permitted to be spoken in the nursery. Mrs Jurga and another Polish worker made further complaints about the deputy manager. Mrs Jurga resigned in 2012 and bought a tribunal claim for race discrimination. Following this Mr Todd (the owner) sent her “intimidating” letters in an apparent attempt to put her off legal action and Mrs Jurga lodged a further claim of victimisation, which she won.
The conclusion – it will be difficult to justify imposing one particular language outside of work duties (on breaks or in casual conversations) or outside of working hours at social events.
In 2016 the Employment Appeal Tribunal considered the case of Kelly v Covance Laboratories Ltd, to see if the case of a Russian national who was told not to speak Russian at work was race discrimination. The facts of the case are interesting and complicated (so we won’t go into them here), but the EAT found that her she had not been discriminated against because it was not Ms Kelly’s race or national original that had made her line manager give her instructions not to speak Russian, but it was her behaviour, in the circumstances of her job, which was a reasonable ground for her manager’s concern that she was speaking Russian.
If an Employer needs to consider their language policy they should consider:
- What level of English is required for each role and be able to demonstrate why that level is needed.
- If only basic English is needed for the role, the Employer could consider offering English classes.
- Interpreters may need to be used at meetings (these could possibly be other employees).
- Multi-language safety signs and notices can be provided.
- Work place policies on bullying, harassment and equality should deal with issues of language and exclusion and respect.
- A common language should be encouraged when doing work activities.
In May 2014 a Government advisor said that Recruitment Agencies should ensure that people recruited as Carers can speak English before placing them in vulnerable people’s homes; going on to suggest there should be a standard interview process to establish English language proficiency.
At the beginning of August 2015 the Government announced that public sector workers ‘must have fluent English’. From September, the Government said that people who do not speak fluent English will be barred from public sector jobs in England, Scotland and Wales which involve working directly with the public. The new rules form part of the Governments Immigration Bill and will require workers to have language skills equivalent to GCSE grade C or above. The Government will issue guidance in a code of practice on how each organisation will test their staff. Existing employees who are not fluent enough may be given time to improve.
If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to Lesley at The HR Kiosk – a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.
Please note that the advice given on this website and by our advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.