I was watching the TV detective show Agatha Raisin this weekend.
In the episode a Farm Shop had two young men come in to the scene talking in Polish, with English subtitles immediately coming on to the screen. The Farm Shop Owner then addresses the men and says she expects them to speak English when at work.
Watching this reminded me that with our increasingly diverse workforce, employers can find themselves having to grapple with uncomfortable language issues at work and the legal implicatons that arise when they do.
We all know that a diverse workforce promotes equality of opportunity. Compliance with discrimination legislation in the workplace is therefore essential, not least because of the significant risk that a loss in a tribunal will have adverse impact on the business as well as the financial compensation being uncapped.
What does the law allow?
The Equality Act 2010 protects employees and others against discrimination on various grounds including that of race. Race includes colour, nationality and ethnic or national origins. Less favourable treatment because of race is unlawful direct discrimination. Unlawful indirect discrimination can be harder to spot.
It involves a provision, criterion or practice (PCP) which applies to all but which puts people in a certain racial group at a particular disadvantage.
Important to remember is that only indirect discrimination can be objectively justified by an employer. Where an employer can show objective justification the treatment will not be unlawful. Objective justification involves showing that the provision, criterion or practice was a proportionate means of achieving a legitimate aim. Broadly, this means showing that there was a good business reason for it and no less discriminatory way of meeting the desired aim.
So can employers require workers to communicate in a common language?
So asking employees to communicate in a common language does sound like it could be indirectly discriminatory and would need to be objectively justified. Right?
The first question to ask is can the employer show there are legitimate business reasons to speak common language?
The obvious one may be that it would reduce “misunderstandings”, whether legal, financial or in relation to health and safety. It could also be conducive to 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. Any such complaints raised should be dealt with on a case by case basis under the employer’s relevant policies with appropriate training and support structures in place to manage such situations.
In the case of Dziedziak v Future Electronics Limited 2012, the Employment Appeal Tribunal upheld a decision that it was an act of direct 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. The issue here the issue was the phrase “do not use your own language”. They directly discriminated against her.
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.
What do employers need to bear in mind?
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:
- considering 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.
- 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.
- Employers should encourage employees to learn from one another and also feedback any ideas on how communication can be facilitated within the workplace to remove any barriers.
The Equality Act 2010 Employment Code of Practice contains further practical guidance on this issue (see paragraph 17.44 onwards).