The area of law surrounding employment is, as with many areas of law, is one that can not only have the obvious legal ramifications but can also be quite emotionally charged as well. This is even more so when discussing the issues and rights surrounding non-native English employees and the rights surrounding social practices and languages spoken at work.
Under the Equality Act 2010 race is defined as something that includes colour, nationality and ethnic or national origins. Native languages clearly fall under this definition. So any moves by an employer to treat someone differently based on language can be race discrimination.
Before looking at the issues surrounding language at work there are no cases or rules to suggest employers cannot support staff by offering ways to learn English. Options like offering online English lessons for example or setting up classes in work provided by an outsourced agency. There may be some issues around forcing people to do this as part of a role however but by offering this kind of thing at no cost in work time with no pressure would be a positive thing.
In the public sector customer facing roles come with an expectance that the individual will be able to speak fluent English since the Immigration Act 2016. This, however, is not the case in the private sector. It is quite natural for a company to consider the issues surrounding customer service in a predominantly English speaking country. It is also natural for this consideration to look at the level of fluency in English and being able to deliver a clear and concise service to the customer. Explaining detailed terms and conditions for example could leave a customer unsure of their cancellation rights if the staff they spoke to were not able to clearly explain everything. However, this consideration is one that should be approached very carefully and with special care given to think about the rights of the individual and how much English is really needed. The area of discrimination around race is very closely associated with spoken language.
Internal Staff Relationships
As well as customer facing considerations many employers are looking at how their staff communicate in the work place. This is not just about chatting in a tea room, it is also looking at how a fire drill might be explained or how an HR issue may be dealt with if multiple languages are involved. Once again, any choices made around this without legal consideration could leave employers open to discrimination claims and in many cases quite rightly.
Speaking Different Languages in the Workplace
There is a clear point of differentiation around asking people to have a certain standard in English and asking them not to speak their own language between other people using the same language. Stopping people conversing in their own language is highly likely to be considered discriminatory as stated in the Acas Guide Race Discrimination: Key Points for the workplace.
English Needed for A Job
The three situations mentioned above cover different areas of language in the work place. Employers can consider a grasp of English to be a factor for rejecting a candidate during interview, but they must be very careful to be able to explain it is because the role itself depends on fluent English. For example, a job in the stock room of a large company would not be a job where English was considered essential like a customer facing role. It is still important to very carefully consider the discrimination rules even when it seems very clear.
Common Language Policy
There have been 3 major cases where the discrimination has been proved as employers tried to force people to not speak their native languages at work.
Jurga v Lavendale Montessori Ltd
In this case race discrimination was proven because the Polish speaking employees were actually told off for speaking their native language at break times while their Italian colleagues were allowed to speak their language with no issue. This was clearly leaving one set of people disadvantaged and persecuted.
The Employment Appeal Tribunal found a manager guilty of discrimination when the employee was asked to stop speaking Polish at work. It was done face to face after another employee had complained it was distracting. The claimant was selected for redundancy later and claimed it was all part of discriminatory behaviour.
In this case Kelly had been working for a company active in animal testing. Previously activists had infiltrated the company under cover and staff were clearly at risk. When the claimant was heard having long conversations on the phone in the toilets they were asked to stop. This was upheld under the grounds that there was reasonable suspicion around her behaviour. The action was in line with protecting the rest of the work force. This was clearly not about her being Russian and would have been the same for any language.
The key for any employer wishing to have a “workplace language” is to specify English is the language of operation for their business. They must not specify a requirement not to speak any other languages at all. The policy must also be applied equally across all nationalities.
Many workplaces benefit from a broad and diverse ethnic staff mix. Different languages spoken across breaks and working areas should not be an issue. Any kind of push to stop a single type of language being spoken is considered discrimination. But having a set language of operation does allow employers to communicate with staff clearly when it comes to matters like safety and HR. In some cases an employer may wish to create policies in other languages to be more helpful.
Requiring English at a certain level for a role is allowed but employers must be ready to very clearly justify why it is critical for the role or they could face discrimination charges.
Asking staff to learn English as part of their development is unlikely to be met with anything other than positivity if the classes are paid for and time is allowed during work/ compensation given via time or money to do so.