With many businesses having a diverse workforce of different cultures and nationality, where do you legally stand with employees who choose to speak their native language or indeed a foreign language whilst at work? Is it unreasonable to ask them not to?
While most employers recognise the benefits of a diverse workforce and actively encourage equality within the workplace, where does it leave you when speaking a foreign language takes place whilst at work?
What does the law state?
The Equality Act 2010 protects employees against discrimination on various grounds; race being one. Less favourable treatment because of race would be viewed as unlawful direct discrimination against the employee. Indirect discrimination, on the other hand, is more difficult to identify as it is associated with practices within the workplace which apply to all employees, however, may put a particular racial group at a disadvantage.
Dismissing an employee for refusing to speak English in the workplace could result in an unfair dismissal claim, the amount of compensation is unlimited. The success of the claim would be based on the case’s own merits and whether the employer can justify their reasons to dismiss on these grounds to be reasonable.
A language itself is not a protected characteristic under the Act, however, a language is associated with a nationality or a race which is a protected characteristic within the Act.
A ‘Speak English only’ Policy – can you implement this?
You could request for all communication amongst employees to be in English during working time ‘as a preference’ however having such a policy in place could indirectly discriminate against employees whom English is not their first language. It boils down to the role itself, its requirements and whether you could justify your reasons for the employee not to speak a different language other than English.
You may be able to justify such a rule or policy in a customer facing role as a legitimate business reason, however, would face certain challenges if you were to implement this as a blanket policy across all other roles within the business which is likely to be more difficult to justify. Whilst it may seem reasonable, that as a business, you ask all employees to communicate in English whilst at work, this would be to a limited extent. Whilst it is recognised that a common language in the workplace avoids misunderstandings that could have serious consequences for the business, it is important to make sure that its application does not amount to indirect race discrimination against an employee. For instance, it would be unreasonable to insist on employees to speak English during their break times or to restrict casual conversations from taking place during working hours.
In line with the Equality Act 2010, it requires employers to consider taking reasonable steps to improve communication skills with employees who are having difficulties speaking English. Such support may extend to providing training, courses to improve communication skills or even providing translating facilities to ensure employees understand workplace policies and health and safety requirements such as ‘multi-language signs’. Such steps would be used in evidence in cases of defending a claim for race discrimination in legal proceedings.
The aim of implementing a policy should achieve certain objectives, such as:
To avoid miscommunication in company policies and health and safety instructions;
to prevent a detriment towards individuals and as a matter of respect towards colleagues and management;
to ensure positive employee relations.
Employees who speak in a different language may need to be reminded to take into consideration the needs of their colleagues; in particular when undertaking work activities. Employees whose English is their first language and who do not understand what their colleagues are saying in a different language may feel excluded and even suspect that their colleagues are talking about them which could create a negative working environment. Whilst companies should not in any circumstances tolerate the type of behaviour which is viewed to be victimisation, bullying or harassment, any such misconduct should be dealt in line with the Company’s policies and employees.
A ‘Speaking English only’ blanket policy within the workplace may not fit all business and you need to assess the business requirements on a role by role basis to justify your reasons for implementing it. It may certainly be viewed as unreasonable to restrict casual conversations taking place in a different language outside of working hours whether it is during their breaks or even after work social events.