Can an employee ask employees to only speak English in the workplace? Can a language policy be regarded as discriminatory on grounds of race? There is surprisingly little case law on this potential problem given how diverse the UK workforce has become. Below our expert employment solicitors have compiled some advice around language discrimination in the workplace and what it means in practice for employers and their policies.
- What is race discrimination?
- How does race discrimination apply to a language policy?
- Can employers have a language policy?
- Special rules for public sector workers
- What do Tribunal cases say on language requirements?
- Key points from the court cases
- Tips for writing and implementing a language policy
- What to do if an employee complains about a language policy
What is race discrimination?
Discrimination in the workplace on the grounds of race is unlawful under the Equality Act 2010. Race includes colour, nationality and ethnic or national origins, but these are only examples – other forms of race discrimination can be unlawful (such as caste discrimination).
The following types of race discrimination are unlawful:
- Direct discrimination – Someone treats a person less favourably than they treat or would treat others because of their race. For example, an employer rejects a job applicant simply because they are of a particular racial group. There’s no justification defence available to an employer in a direct discrimination claim.
- Indirect discrimination – The employer has a rule, policy or procedure which, although applied to all employees equally, particularly disadvantages a specific racial group and a particular individual of that racial group when the rule, policy or procedure is applied to them and the employer can’t show ‘objective justification’ for the treatment. Objective justification will only be found where the rule, policy, or procedure is a proportionate means of achieving a legitimate aim and if you are looking to objectively justify a rule, policy or procedure, it is advisable to seek professional legal advice first.
- Harassment – (Unwanted conduct which violates an employee’s dignity or creates an intimidating, hostile, degrading or offensive environment for them) related to the employee’s race and considers the complainant’s perception, the other circumstances and whether it was reasonable for the conduct complained of to have the effect it did on the complainant.
- Victimisation – Of someone who has made or is making a complaint about race discrimination.
As with other forms of discrimination, protection from race discrimination in the workplace is wider than for employment rights such as protection from unfair dismissal. It covers job applicants, employees, workers and even some self-employed people (broadly, if they are contracted personally to do the work).
It’s important to note that, unlike for an unfair dismissal claim, an employee does not need two years’ service to bring a claim of race discrimination and that compensation for unlawful discrimination is not capped.
How does race discrimination apply to a language policy?
Race includes nationality, and language is a basic element of nationality. But there’s an important difference in discrimination terms between scenario (1) – telling employees they can’t speak another language (their own first language, for example) in the workplace; and scenario (2) – telling them they must speak English in the workplace:
- Scenario 1: An instruction to an employee not to speak in their own language at work could be direct race discrimination because you are treating them less favourably – not allowing them to speak their first language – because of something that is fundamentally linked to their nationality. Even if you have good business reasons, a Tribunal won’t allow you to try to justify your actions. The only way of avoiding unlawful discrimination would be to show that the rule was actually unrelated to nationality (as in the Kelly case, discussed further below.
- Scenario 2: On the other hand, a rule that employees must speak English at work could amount to a policy which, although applied to all employees equally, disadvantages an employee of a particular race – indirect discrimination, in other words. If you can’t show that your policy is justified – that it was a proportionate means of achieving a legitimate aim – the discrimination will be unlawful. However, if you are able to justify that for example in order to ensure health and safety at work, that all employees must speak English, this may be an objective justification and be lawful, dependent on the circumstances of the case.
Can employers have a language policy?
It is estimated that around 8% of the UK workforce do not speak English as their first language and so many businesses have a cosmopolitan workforce including employees who do not speak English as their first language. Those employees who do not speak English as their first language are likely to speak a foreign language to other colleagues of the same nationality, or to friends and family by phone while in the workplace.
Employers may want to limit the use of other languages at work, by specifying that English is spoken in work-related conversations, or at all times in the workplace, for a variety of reasons:
- For employee or customer health and safety reasons related to the particular business.
- For good employee relations – to ensure that employees don’t feel excluded or bullied if they can’t join in their colleagues’ conversations.
- To maximise effective business communication with customers or internally. (Some employers may also want to hire employees with a certain level of English language skills as a necessary requirement for the job, and are able to do so if this is a requirement in order to perform a role effectively but employers cannot make assumptions about language and race. For more information about recruitment, contact our employment lawyers.
ACAS, in its article ‘Race Discrimination Key Points for the Workplace’, advises that employers should be wary of limiting the use of other languages at work unless they can justify this with a ‘genuine business reason’. But strictly, if it’s direct discrimination (scenario 1) it’s not a question of justification – there will have to be an explanation unrelated to race.
If it’s a potentially indirectly discriminatory policy (scenario 2) and the employer is challenged to justify it, then as well as giving a genuine business reason, they will also need to show that they have considered other, less discriminatory, options, such as:
- If it’s a safety issue, would multilingual safety signs or communications be sufficient rather than insisting on English language?
- Could workplace diversity/bullying and harassment policies be used to deal with the potential exclusion issues?
- In limited circumstances could specialist assistance be offered to those employees whose English skills are limited. For example, could an interpreter be provided at a disciplinary hearing, as communicating clearly in English if this is not their first language, may be more difficult when an employee is upset.
- If customer communication is the justification, could the policy be confined to customer facing roles? Internally, can interpreters or IT applications help?
Special rules for public sector workers
Public authorities must ensure that all staff working in public-facing roles (those who are required as a regular and intrinsic part of their role to speak to members of the public in English/Welsh) speak English/Welsh to a set fluency standard. This is a requirement of the Immigration Act 2016.
What do Tribunal cases say on language requirements?
There are very few court cases dealing with language policies. Three of the below reported cases arose from employer instructions to employees not to speak in their own language – direct discrimination (scenario 1).
The first two were successful claims of unlawful discrimination:
- In Dziedziak v Future Electronic Ltd, a Polish employee was having a work‑related conversation at work with a colleague in Polish. She was called to a meeting shortly afterwards with her line manager. He reprimanded her for speaking Polish; a colleague in the office had complained that it was distracting to her. This treatment of the Polish employee was direct race discrimination.
- Jurga v Lavendale Montessori Ltd was a race harassment claim by a Polish teacher. The teacher told her employer that one of her colleagues had complained to the school about her speaking Polish during work breaks. The Tribunal found that the employer had failed to investigate the teacher’s complaint properly and both this, and the colleague’s original complaint, amounted to unlawful harassment – they created a humiliating or hostile work environment for the teacher. There had been no objections about Italian employees at the school speaking Italian at break times.
In both these cases, because they were direct discrimination claims, the employer wasn’t allowed to try to justify their actions.
In the third case the employer managed to defend a claim about a ban on speaking a foreign language:
- The claimant in Kelly v Covance Laboratories Ltd worked in an animal testing laboratory. There had in the past been security issues – assaults on employees by animal rights activists as well as activists working undercover.
- Early on, there were concerns about the claimant’s unusual behaviour – including going to the bathroom for long periods with her phone and speaking in Russian on the phone. Her line manager, worried that she might be an animal rights infiltrator, instructed her not to speak in Russian at work. He thought it important that any workplace conversations should be capable of being understood by English speaking managers. When the claimant objected that her Ukrainian colleagues also spoke Russian at work, he passed on similar instructions to their line managers.
- The Employment Appeal Tribunal (EAT) decided that the instruction given to the claimant didn’t amount to race discrimination or harassment – the employer had an explanation other than race. There were good reasons for the instruction, to protect the security of the laboratory and the staff within it, which would have been given to any employee speaking a language other than English, as these circumstances gave cause for concern against the background of previous security breaches.
In a further recent case Griffin v Hyder Brothers Ltd 2012, Mr Griffin was a supervisor at a petrol station, which was taken over by the Hyder Brothers. Two of Mr Griffin’s colleagues, including Mr Hyder, the owner, often spoke to each other in Urdu or Punjabi in Mr Griffin’s presence and referenced his name but he couldn’t understand the rest of what they were saying. This made Mr Griffin feel uncomfortable and excluded and so he brought a claim for discrimination and harassment. Mr Griffin was unsuccessful in his claim because:
- There was no clear evidence that anything derogatory had been said about him by those speaking in Punjabi and Urdu.
- No other aggravating factors existed, such as an intention to exclude, upset or humiliate Mr Griffin at work.
- A hostile environment had not been created and the number of incidents had been found by the Tribunal to have been exaggerated by Mr Griffin.
- Two people running a business would be required to discuss employees by name and it would be reasonable to do this in their first language, if it was easier for both parties to the conversation.
This case does not however, preclude discrimination or harassment claims being successful on different facts when a foreign language is used by staff in front of others who do not understand that language.
Key points from the court cases
If it’s necessary to implement a policy on spoken language at work, it is preferable for it to be a requirement to speak English, rather than a requirement not to speak a particular language or languages. If there is discrimination, it would be indirect, not direct, and could be justified.
Consistency is key. In the Kelly case, the employee was treated in the same way as other colleagues who did not speak English as their first language and her claim failed; whereas in the successful claim in Jurga, Polish-speaking colleagues were treated differently when compared to their Italian colleagues.
Using a foreign language might be acceptable, dependent on the facts in the particular case, for convenience and to clarify things where both parties to a conversation speak the same first language. However, this does not mean that there is not the potential for conversations in a foreign language to be discriminatory if they are part of a more consistent programme to exclude, intimidate or upset staff that do not speak their language, or harassment if speaking the foreign language is done in a way which creates an offensive, hostile or humiliating working environment for employees that do not speak that foreign language. A clear policy and very clear exceptions to any general rules can be helpful in avoiding discrimination claims.
Tips for writing and implementing a language policy
If you decide that you have good business reasons for a spoken language policy, then:
- Make the policy clear – there is less danger of a potential unlawful discrimination claim if the requirement is framed as a positive one – to speak English, rather than a negative one – not to speak other languages.
- Decide whether the policy will cover just work-related discussions or social conversations in the workplace as well. You need to match the policy to the justification for it, so if it’s designed to avoid employees feeling excluded, then it makes sense for it to apply to all conversations in the workplace.
- Apply it in a consistent way to employees of all nationalities.
- Make sure your recruitment procedures cover the policy and put it in contracts of employment.
- Seek professional advice if you are unsure. If you get the policy right and follow it correctly, this will reduce your business’ exposure to discrimination claims.
What to do if an employee complains about a language policy
If an employee complains about your language policy or an instruction to speak English/not to speak another language:
- Establish whether you can deal with it informally, or whether it is a formal grievance.
If the employee submits a formal grievance:
- Follow your own grievance procedures and the ACAS Code of Practice on disciplinary and grievance procedures. Failure to deal with a grievance properly can in itself lead to a discrimination claim, or be a breach of contract entitling the employee to resign and claim constructive dismissal. (For more information on constructive dismissal, see our advice post What is a fair dismissal?)
- Allow the employee to be accompanied at any meetings and allow for a friend or interpreter to attend with the employee if English is not their first language and it would assist them with the process.
- Allow the employee to appeal against your decision.
- Make sure the grievance is actually resolved/concluded.
- Consider if any disciplinary proceedings and/or training are needed – in relation to the behaviour of other employees, for example.
If the employee sends you informal questions before bringing a discrimination claim:
- Although you are under no legal obligation to answer (there is no longer a statutory questionnaire procedure), a Tribunal may look at whether/how you have answered as a factor in deciding on a discrimination claim.
- Reply promptly (having investigated), to the address the employee has given.
- Confirm whether you agree/disagree with the description of the alleged discrimination and set out your own version of events and reasons for the policy.
- Ask for clarification of any questions that aren’t clear or relevant.
- Explain why any questions are not being answered.
- Say if you won’t be able to meet any deadline set for replies and suggest an alternative date. (As a guide to what is reasonable, the deadline under the statutory procedure used to be eight weeks.)
If the employee brings a Tribunal claim:
- The employee doesn’t have to raise a grievance before making a Tribunal claim (but a Tribunal could reduce an award if it thought it was unreasonable for the employee not to comply with the recommendation in the ACAS Code to go through a grievance procedure first).
- The employee must go through ACAS pre-claim conciliation before lodging their claim with the Tribunal, unless there is a whistleblowing claim, and the employee is applying for interim relief. ACAS refers the matter to a conciliation officer who will attempt to encourage a settlement agreement between you and the employee.
- If you have not already done so, locate and review all relevant documents and speak to any witnesses. Concentrate on what you did, not just the employee’s allegations.
- Consider whether a settlement or mediation are feasible options – defending a claim will cost you time, money, and possibly reputational damage.
In all situations:
- Investigate thoroughly and promptly.
- Keep things confidential.
- Avoid aggressive or antagonistic communications.
- Think about getting expert legal advice – the distinction between direct and indirect discrimination is complex and compensation for unlawful discrimination is uncapped so a successful claim by an employee could be very costly for your business.