But employers need to demonstrate strong business reasons for doing so

How to deal with different languages and avoid a claim for race discrimination can be one of the most problematical challenges for employers managing a multi-cultural workforce. While ‘language’ is not a protected characteristic under the Equality Act 2010, race discrimination claims of this nature could be raised on the grounds of nationality or national origins.

The Acas guidance on race discrimination warns that employers should be wary of ‘prohibiting or limiting the use of other languages within the workplace unless they can justify this with a genuine business reason’. The guidance gives the example of telling two employees, whose first language is Russian, that they must speak English to each other at work even when they’re not working. The guide explains that while this could be discriminatory potentially, an employer might be able to justify it if other employees feel excluded or bullied because they cannot join in the conversation ‘in the course of their employment’.

The latest case law on this issue, Kelly v Covance Laboratories, highlights the difference between when it is and is not lawful to insist employees speak English at work. The employee was told not to speak Russian at work because the employer, which conducted animal testing, was concerned she may be an animal rights infiltrator. Kelly failed to establish that her manager’s instruction amounted to harassment or direct discrimination on the grounds of her nationality, and the EAT ruled that the employer had justifiable concerns that the risks of not being able to understand her could pose for its business.

In contrast, in another recent decision, Konieczna v Whitelink Seafoods, a Scottish tribunal ruled that an instruction not to speak Polish at work did amount to racial harassment. Here a Polish HR administrator was told to speak only English in the workplace, even though many of her co-workers were Polish and unable to speak English. This resulted in a farcical situation, with the claimant conducting an interview in English with a Polish-only speaking colleague through an interpreter. In addition, derogatory remarks were made by one manager regarding the Polish workforce, which strengthened the harassment claim. Although the company argued the language instruction was made on health and safety grounds, the tribunal judge concluded it was “more likely to create a greater health and safety risk than reduce it”.

It is essential employers establish a non-discriminatory business reason for imposing an English-only speaking rule on staff. Health and safety is one of the most common reasons, and employers operating in safety critical environments will be in a stronger position to justify such a rule where machinery is involved and accidents could happen due to language barriers between co-workers. Other reasons include security risks or an impact on workplace effectiveness, or patient safety. Well publicised errors by foreign doctors with poor language skills prompted the General Medical Council to introduce stricter language tests for doctors working in the UK. The government also plans to introduce a code of practice for public sector workers with customer-facing roles which will stipulate that staff must achieve a minimum standard of English.

After identifying a non-discriminatory reason, employers should ensure this instruction to only speak English relates purely to operational activities. Discussions at meal breaks or personal conversations should be exempt. Simply because certain employees feel excluded from a conversation will not be sufficient to impose a rule of this nature that extends to social situations. In one case, an employee was instructed not to speak Polish in the staff room since her English speaking colleagues felt excluded. The tribunal ruled that this instruction amounted to harassment.

When framing the rule, employers should request that their employees speak English, as opposed to telling them not to speak their native language, as the latter could expose an employer to a claim for indirect discrimination. Like any work rule, employers should ensure it is applied consistently across the organisation. For example, only applying the rule to one nationality, or to one individual, will enhance the risk of a claim of discrimination or harassment. And, while imposing such a rule is possible, there must be legitimate business reasons for doing so.

Finlay McKay is an employment partner at law firm CMS

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