This article has been updated from an older version, first published in May 2017, to reflect current current advice and best practice...
It is clear that most companies in the UK benefit hugely from having an ethnically diverse workforce. Multi-cultural and multi-lingual workplaces are undoubtedly a good thing, but employers must be aware of situations whereby employees – including those who are English-speaking – are made to feel excluded or bullied as a result. Language issues must be handled tactfully and proportionately in order to avoid potentially costly claims.
A question we are often asked is: can an employer insist that its employees speak only English at work?
In short, yes. But there are of course considerations.
Why are we asked this question?
Usually there is an instance of a communication break-down, this could have result in poor performance, a possible breach of health & safety practices or a rise in employee grievances from a lack of engagement and perceived unfair or inappropriate behaviour.
There are a relatively small number of cases to rely on to support this decision but The EAT judgement in Kelly v Covance Laboratories Limited. provides an interesting judgment for reference.
Kelly, a Russian national, was employed by a company engaged in controversial animal testing which had been targeted by animal rights activists in the past. Activists had previously worked undercover for the company in order to gain inside information about their practices. Kelly’s behaviour at work had been odd: she regularly used her mobile phone to have long conversations in Russian during worktime and spent lengthy periods in the company toilets doing the same. Her line manager grew suspicious that she was actually an undercover activist and resultantly ordered her not to speak Russian at work so that her English-speaking managers could understand her. Notably, the same instruction was also given to two Ukrainian employees.
The Equality Act 2010 defines ‘race’ as including colour, nationality and ethnic or national origins, and native language falls within that definition. Kelly brought a claim for race discrimination which was dismissed by both the Employment Tribunal and EAT. The reason for the instruction was not because Kelly was Russian, but was because of the reasonable suspicion surrounding her behaviour. Furthermore, Kelly’s comparators – the Ukrainian employees – had been treated in the same way, as would a hypothetical comparator speaking any other language.
This judgment is unusual and very fact-specific. Language is intrinsic to a person’s national origin meaning an unjustified prohibition on using native language may well amount to HR. In the 2012 case of Dziedziak v Future Electronics Ltd the employer was found to have directly discriminated against an employee when management prohibited him from speaking Polish at work.
What is clear here, is that there grounds required for justifying the request; and any policy outlined needs to ensure that the requirements are clearly outlined and are supported by non-discriminatory practices and are therefore applied consistently across the business. Employers should also consider their role in ensuring that their employees are given the adequate communication tools to be able to comply with any policy requests.