Language barriers at work
Alison Woods , head of employment law in Scotland at law firm CMS, discusses whether an employer is legally allowed to insist that their staff speak English at work.
One of the most practical challenges for employers managing a multi-cultural workforce is how to deal with language barriers while avoiding claims of race discrimination. Specifically, is it acceptable for employers to insist that all staff speak English at work? Two recent cases shed some light on this delicate issue.
In Kelly v Covac Laboratories, the employee was told not to speak Russian at work because the employer, which conducted animal testing, was worried that she may be an animal rights infiltrator, and was concerned about suspicious behaviour.
In this case the employee failed to establish that her manager’s instruction amounted to either harassment or direct discrimination on the grounds of her nationality.
The court ruled that the employer had justifiable concerns about the individual, in light of the very real risks that an inability to understand her could pose for its business.
In contrast, the recent Aberdeen tribunal decision in Konieczna v Whitelink Seafoods ruled that an instruction not to speak Polish at work amounted to racial harassment by the company.
In this case a Polish HR administrator was told to only speak English in the workplace, despite the fact that many of her co-workers were also from Poland and unable to speak English.
This resulted in a farcical situation, with the claimant conducting an interview in English, with a Polish-only speaking candidate, through an interpreter.
Although the company argued that the instruction was made on health and safety reasons, the tribunal judge concluded that it was “more likely to create a greater health and safety risk than reduce it”.
As these cases highlight, it is essential for employers to establish a non-discriminatory business reason for imposing an English speaking rule on staff.
Reasons may include the ability to demonstrate health, safety or security risks or an impact on workplace effectiveness resulting from their workers not communicating in English while on duty.
Workers in teaching roles, for example, who need to be clearly understood by students, are likely to be subject – legitimately – to an English-only ruling, although discussions at meal breaks or personal conversations should be exempt from this.
Where it is deemed to be required, applying an English language rule in a positive manner is always best practice.
Requesting that employees speak English whilst carrying out their duties is far better than telling them not to speak their native language at work as the latter could result in an indirect discrimination claim, not to mention disgruntled employees.