We would like to introduce a policy requiring all staff to speak English during work, but are worried that we could be accused of discrimination. How do I handle it?

Amanda Magee of Tughans writes:

When introducing a policy requiring employees to speak only English in the workplace, there is always a risk that the policy will be seen to be indirectly discriminating against those employees for whom English is not a first language. Whether or not such a policy is indirectly discriminatory, will depend on whether or not you have legitimate business needs for employees to speak in English while at work, which are sufficient to outweigh the discriminatory impact of such a policy on the workforce.

Indirectly discriminating against an employee on the grounds of race is prohibited by the Race Relations (Northern Ireland) Order 1997. Although language itself is not a protected characteristic, a common language has often been interpreted as a criterion for defining ethnic or national origins, which are included in the definition of “racial grounds” within the Order.

It is essential when considering the implementation of a common language policy, to look carefully at the reasons why you believe such a policy is necessary, and consider whether or not the same or similar outcome could be achieved by less discriminatory means. If it is not possible to achieve the desired outcome without implementing a common language policy, you must look at the business reasons behind the policy and determine whether or not they are legitimate and proportionate in the circumstances, and sufficiently justifiable to outweigh the discriminatory impact the policy will have on the workforce.

You have not specified whether or not the requirement to speak English will be imposed on employees at all times and in all areas of the workplace. However, whilst you may be able to justify a rule requiring work-related communication to be carried out in English as being a proportionate means of achieving a legitimate business aim, a blanket rule requiring all communication to be in English is unlikely to be justifiable, particularly if it extends to break times.

In the case of Shah v George Grassic t/a the Suite Factory [1995] IT/58764/94, a worker in the furniture factory was dismissed for refusing to comply with an instruction to speak in English. His manager had instructed him to speak in English when talking to his colleagues, so that he knew what was being said. The Employment Tribunal did not find unlawful discrimination and commented:

“If the worker had been told not to speak in his native tongue at all on any occasion at work, in any circumstances, then that, in our view, would clearly be a discriminatory instruction…[but in these circumstances] it was not unreasonable for [the owner] to expect the common courtesy of being spoken to, or about, in a way in which he could understand.”

Fast food retailer McDonalds also won a case on this subject. After another employee complained that Polish staff were speaking their own language while working in the restaurant, all staff were asked to speak English on the restaurant floor wherever possible. Two of the employees, Ms Szewczyk and Ms Cisowska, claimed they were formally prohibited from speaking Polish, and that this happened after they had raised a number of grievances with the Company. Their claim for race discrimination was deemed by the tribunal chairman to be “not well founded”. He said that the requirement for staff to speak English where possible was directed equally at all staff, and that even if it could be “seen to be discriminatory”, the tribunal had balanced this against the reasonable needs of the employer. Both employees therefore lost their claim.

In 2011, the Waterstones warehouse in Burton-upon-Trent, which employed a large proportion of Polish and Latvian workers, introduced a policy banning staff from speaking any language other than English during working time (workers were allowed to speak their native languages during break times). The management wanted to remove divisions and prevent workers from feeling marginalised or isolated. A petition was drawn up against the logistics firm, Unipart (which ran the warehouse on behalf of Waterstones), stating that the ban discriminated against non-English speaking staff and breached their human rights. However, Unipart argued that it was important for both good, clear communication among employees and also to ensure that their stringent health and safety standards were maintained that all employees spoke a common language. Unipart reiterated that the requirement to communicate in English did not apply during meal and rest breaks, and stated that they had found that all employees speaking the same language when working together created a better team environment.

In the more recent case of Dziedziak v Future Electronics Limited [2012] UKEAT 0270 11 ZT, the Claimant, who was Polish, was having a work related conversation with a colleague in Polish. Another colleague complained to the Claimant’s line manager that the Claimant was distracting her. The line manager reprimanded the Claimant for speaking Polish. The Employment Tribunal, with whom the EAT agreed, found that there had been an act of discrimination.

The Employment Tribunal found that the Claimant was instructed not to speak in her own language and thereby established facts from which they could conclude that there had been discrimination on the grounds of nationality. Whilst language is not the same as nationality, by the use of the words “own language” the tribunal had shown that it had found a link that was intrinsic with nationality. There was no evidence that anyone else had been directed in this cosmopolitan workplace in the same way, therefore there was evidence of an actual comparator in the workplace. Being told not to speak in your own language is capable to amounting to a detriment, therefore there was evidence of less favourable treatment. These matters taken together permitted the burden of proof to pass. On this occasion, there had been no explanation proffered for the difference in treatment, therefore the Employment Tribunal had been entitled to find discrimination had been made out.

In relation to language in the workplace, the Equality Act 2010 Code of Practice, issued by the Equality and Human Rights Commission in GB, states as follows:

“There is a clear business interest in having a common language in the workplace, to avoid misunderstandings, whether legal, financial or in relation to health and safety. It is also conducive to good working relations to avoid excluding workers from conversations that might concern them.

However, 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. Blanket rules involving the use of a particular language may not be objectively justifiable as proportionate means of achieving legitimate aim. An employer who prohibits workers from talking casually to each other in a language they do not share with all colleagues, or uses occasions when this happens to trigger disciplinary or capability procedures or to impede workers’ career progress, may be considered to be acting disproportionately.”

Similarly, the Equality Commission of Northern Ireland’s publication Employing Migrant Workers – a Good Practice Guide for Employers for Promoting Equality of Opportunity, states:

“On the one hand, it is unlikely to be justifiable for an employer to absolutely forbid the speaking of non-English languages on all occasions and at all times in the workplace. For example, in most workplaces workers often engage in casual conversations, even in the course of their work. It is likely to amount to unlawful race discrimination if an employer forbade workers from countries where English is not the first or main language from having such casual conversations with each other in their native languages whilst permitting local workers to have casual conversations in English.

On the other hand, it may be justifiable for an employer to require workers to speak English in certain circumstances: for example, where to do otherwise would hinder effective communication with the result that health and safety risks are substantially increased. Another example may be where effective communications are required in dealings with a business’s English speaking customers.”

Whilst there is a clear business interest in having a common language in order to avoid misunderstandings and to ensure health and safety in the workplace, the requirement for employees to speak English can only be justified if it is a proportionate means of achieving a legitimate aim. Before implementing such a policy, employers will be required to show that their legitimate business needs are sufficient to outweigh the discriminatory impact on the workforce, and that the same result cannot reasonably be achieved by less discriminatory methods. Employers should bear in mind that although requiring employees to speak English to customers and colleagues in a work context will most likely be justified, they will have a difficult time justifying a blanket rule prohibiting employees to engage in casual conversations or conversations during break times in other languages.