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Language requirements can be a legal minefield

Regulations made under the Immigration Act 2016 that came into effect on 22 December 2016 brought into force the Code of Practice and introduced the requirement for public sector workers who speak to the public as a regular and intrinsic part of their role to be fluent in English (and English or Welsh in Wales). There is no equivalent fluency requirement for the private sector.

Imposing language requirements

While employers are generally free to draw up their own requirements for roles within their business, they should not breach their duties under the Equality Act 2010 by discriminating against those with a ‘protected characteristic’.

Whereas businesses may see it as desirable to have all employees with perfect command of the English language, imposing such a requirement is potentially discriminatory. The most obvious risk is that of indirect race discrimination as the provision, criteria or practice (PCP) disadvantages those whose mother tongue is not English, and will therefore only be defensible if the employer is able to show objective justification (and that it is proportionate means of achieving a legitimate aim).

In practice, this is likely to mean that, so long as an employee’s command of the language is sufficient for them to carry out their duties, an obligation on such employees to have a greater or better command of the language (absent any other good reason) is potentially discriminatory. This means that different roles can have differing language requirements, and one would expect, for example, customer-facing roles such as working on reception to have a higher requirement than roles which require minimal interaction in English, for example, cleaning roles.

Disciplinary action or performance management will clearly not be appropriate in circumstances where the employee does not meet the more demanding language requirements of the employer but has sufficient grasp of the language to carry out the role. Any such action taken could amount to a detriment.

Potential problems

Employers considering exercising a degree of control over language in the workplace should bear in mind the following:

  • In 2010, an employment tribunal found that an instruction to a Polish worker not to speak Polish at work was direct race discrimination (Dziedziak v Future Electronics Ltd)
  • In 2015, the Employment Appeal Tribunal agreed that an instruction to only speak a particular language in the workplace could be discriminatory (although on the facts of the case, Kelly v Covance Laboratories Ltd, it was held not to be because the employer’s instruction was based on a genuine concern that the employee may have been an animal rights activist)
  • The Equality and Human Rights Commission Employment Code of Practice states: “Employers should make sure that any requirement involving the use of a particular language during or outside working hours, for example during work breaks, does not amount to unlawful discrimination”

Comment

Not all workplaces have a policy on language at work, and indeed employers may be proud of the diversity of languages spoken by their workforce. However, for those with language policies requiring English to be spoken, such policies could be indirectly discriminatory unless there is a legitimate aim. Furthermore, for employers who go a step further and prohibit the speaking of another language at work, this runs the risk of being directly discriminatory.


Kevin Lau is a senior solicitor in the employment law team at Blake Morgan

Added: 12-04-2017
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