March 25, 2014

Do employees have to speak English at work?

An employer recently warned its foreign employees that if they did not speak English in the workplace they would be dismissed.

On the face of it this may seem a relatively straight-forward issue and not at all unreasonable…but is it?

There are many employers around the country that employ foreign workers which inevitably leads to a more diverse workforce.

Given that language issues may arise in the workplace, if there is one common language that is only allowed to be spoken does this have any legal implications?

The answer is yes, but it depends on the circumstances of each case.

Dealing with the law

The Equality Act 2010 protects employees and certain others against various types of discrimination which includes race.  Race covers colour, nationality and ethnic or national origins.

The concept of ‘less favourable treatment’ on the grounds of race would be directly discriminatory and therefore unlawful.  Indirect discrimination is somewhat more difficult to identify as it deals with a provision, criterion or practice (PCP) which applies to all workers but puts a particular racial group at a disadvantage.

The law in this regard only allows indirect discrimination to be objectively justified by the employer.   Should the employer be able to objectively justify such treatment this will not be unlawful.

Objective justification involves showing that the PCP was a proportionate means of achieving a legitimate aim.  In essence, this means showing that there was a good business reason for it and no less discriminatory way of meeting the desired aim.

Unfair dismissal

If an employee is dismissed for not speaking English could lead to a claim of unfair dismissal.  Each case would be decided on its merits however, on the face of it, it would seem unreasonable to dismiss for this reason unless the employer can show that the dismissal was reasonable in all the circumstances.

Should an employee be dismissed for this reason, they could argue that their dismissal was on the grounds of Race and therefore they would not need the minimum qualifying service to bring an unfair dismissal claim.  Furthermore, the amount of compensation that could be awarded for a discriminatory dismissal is unlimited.

Requirement for certain language skills

Can an employer require its workforce to have English speaking skills? On the face of it, this would be indirectly discriminatory as those are not native English speakers are less likely to be able to comply with it.  If however, the employer is able to show that say having an excellent English speaker is necessary for the satisfactory performance of the job they should be able to objectively justify the requirement. This will obviously depend entirely on the role. If for example, the role is customer facing it is more likely it could be objectively justified compared to a role on a production line where only basic English skills may be necessary to perform the role satisfactorily.

Can employers require their employees to communicate in a common language – generally English? Broadly speaking, such a requirement would again be indirectly discriminatory and would need to be objectively justified.

Can the employer show there are legitimate business reasons to speak common language? One example is that it may reduce misunderstandings, whether legal, financial or in relation to health and safety. It could also help create good employee relations and promote cohesion.

If English speaking employees do not understand what their colleagues are saying in a different language, they may feel excluded and may suspect that their colleagues are talking about them. Employers will need to be mindful of the risk of bullying and harassment within the workplace.

A recent employment tribunal case demonstrates the complexity which can arise for employers dealing with these issues. In the case P F Franco v Fyffes Group Limited, a claim of indirect race discrimination was brought by a Portuguese national. Mr Franco claimed that some of the line supervisors conducted some of their discussions in Polish and this amounted to the application of a PCP which put persons who shared the characteristic of not speaking Polish, including him, at a disadvantage. The claimant, although not English himself was unhappy that all employees were not required to speak English the whole time.

The Judge had a different view and considered that Fyffes could objectively justify this PCP and found that,

‘.. to allow people who share a mother tongue to communicate in it is generally likely to lead to clearer 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.’

As the employer in this case could demonstrate that management reminded Polish speakers to consider the needs of those without the language when they were around, this was considered by the tribunal a proportionate modification of the PCP. As this was a packing/sorting type role in a factory, it did not require excellent English skills.

In the case of Dziedziak v Future Electronics Limited 2012, the Employment Appeal Tribunal upheld a decision that it was an act of direct race discrimination when the employer told Ms Dziedziak, who was Polish, not to “use her own language”. This was particularly problematic as while it is possible to defend a claim of indirect discrimination as being objectively justified there is no such defence to claims of direct discrimination.

In conclusion

It is certainly likely to be difficult to justify imposing a particular language outside of working duties for example, after work at social events, during work breaks or casual conversations between colleagues. Similarly, blanket rules or policies involving the use of a particular language within the workplace may also be difficult to objectively justify as a proportionate means of achieving a legitimate aim unless there are good business reasons for it, the position will depend on the facts of each case and employer’s particular circumstances.

Guidance

When trying to objectively justify a potentially indirectly discriminatory language policy, employers will be expected to demonstrate that they have considered whether there is any less discriminatory way of reducing any disadvantage to a particular group, this may include for example

Consider what level of English may be required for the role (if any) and to be able to demonstrate why this level is required.

If only basic words need to be spoken and understood in English to perform the role, consider English language classes.

Interpreting facilities – this may not be at any additional cost to an employer’s business as a number of employees are multi-lingual and could assist with interpreting at meetings. It may be there are various language apps that can be installed on IT equipment which can assist with communications.

Multi-language safety signs, notices and communications can be put in place – particularly for health and safety requirements.

Workplace policies should be put in place (i.e. on Equality, Bullying and Harassment). This should deal with issues of exclusion and being respectful of others who do not share the same language. Training should also be provided on these policies.

Individuals should be reminded to consider the needs of others who do not share the same mother tongue and to encourage a common language to be spoken when undertaking work activities.

If you need advice or help on this subject, you can take a look at our free helpful employer resources.

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