The Question
A hospital Trust that I train in regularly stipulates that staff must speak English – no matter what their own language – while within hospital grounds, even if they are going off duty.
My gut reaction is that this contravenes the Equality Act and Human Rights. Am I right? Does anyone know employers with similar ‘rules’?
Legal Advice
Esther Smith, a partner at Thomas Eggar
The requirement that employees speak English at work can be regarded as indirect discrimination on the grounds of race, or ethnic background, as it puts people whose first language is not English at a disadvantage in complying with this condition or requirement.
However, as the potential argument of discrimination is one of indirect rather than direct action, employers may be able to justify it.
In a working environment where the employee has a customer- or client-facing role and the majority of those clients and customers are English-speaking, and communication between colleagues is vital, and those colleagues are predominantly English-speaking, an employer is likely to be able to justify such a requirement.
I think that they may struggle to justify the imposition of the same rule on employees who are on work premises during breaks, travelling to work or otherwise not performing their contractual duties, however.
Esther Smith is a partner in Thomas Eggar‘s Employment Law Unit.
Martin Brewer, a partner at Mills & Reeve
I find it surprising that this is an express stipulation made by a hospital Trust. What possible purpose could such a requirement serve and how would they police it anyway?
If there is such a requirement, it’s quite difficult to see how it amounts to discrimination contrary to the Equality Act. It would have to amount to indirect discrimination, being the imposition of a provision, criterion or practice (in this case the requirement to speak English within the Trust’s grounds) that applies to everyone but disadvantages a particular group (presumably those who do not have English as a first language) and specific individual. It would also have to be unjustifiable.
If all of the Trust’s staff can speak English (whatever their race, nationality or ethnic origin) anyway, I don’t see how the requirement to speak English is discriminatory. What is the actual disadvantage? It would, as I have said, be a very odd and somewhat arbitrary requirement, but not obviously race discrimination per se.
You suggest that it may also be contrary to ‘human rights’. I suppose you could construct an argument that, once someone has finished work or is having a private conversation during a break at work, for example, they are covered by article 8 of the Human Rights Convention (the right to respect for private life).
This argument would take the line that speaking one’s own language is a private matter and the Trust has to respect the use of that language as part of this ‘private life’.
There is also article 10 to consider (the right to freedom of expression, including that of imparting ideas and information without interference), which can be coupled with article 14. This latter article says that the freedoms and rights laid down in the Convention shall be secured without discrimination,.
As a result, it is possible to argue that, requiring people who do not have English as a first language to converse in English with individuals who speak the same native language outside of their working duties, infringes article 10 when read together with article 14 because it has an adverse impact on their ability to impart ideas and information. But it may be stretching a point.
Martin Brewer is a partner at Mills & Reeve.
3 Responses
legal/HR
Both good legal answers but missing the point which other contributors have made. Such a restrictions sounds wrong but is usually easily justifiable in most circumstances except purely private one to one conversations
The Question
Not surprisingly, the author and respondents to “the question” focus on the potential indirect discrimination that employees whose first language is not English may experience because of this rule, but there is another side to this issue. Many years ago I worked on a site where there was a large Bangladeshi workforce, most of whom could speak reasonably fluent English (I interviewed new recruits) but who all spoke Bengali at work. The effect of this was to create a closed shop, effectively reserving jobs for members of their community, other than the minority Urdu speakers who were made to feel even less welcome than native English speakers. No one who didn’t speak Bengali stayed more than a couple of weeks.
Language and communication are essential aspects of both good working relations and good social relations. Even if your colleagues converse in English when they are working, sitting in a rest room where everyone chooses to speak in a language that you cannot understand is isolating and the effect is akin to bullying. I have experienced this first hand in Wales, you walk into a room or pub and everyone stops talking in English and starts to speak in Welsh. It emphasises that you are an outsider and are not welcome.
Language is power and not being able to follow a conversation puts you at a disadvantage. Even in situations where the vast majority of staff speak English all the time, having a couple of employees who converse in their native language (or in one office where I worked, in French because they liked to practice it) tends to create an uncomfortable atmosphere. People tend to wonder what they are saying, who they are talking about etc., and relationships become strained.
Multiculturalism has long been the mantra but as having a common language is an essential step in achieving understanding between different groups, perhaps the pertinent question to ask is why did the Hospital Trust introduce this rule? If it is a reasonable means to achieve a legitimate aim such as reducing racial tension within the workforce or between the workforce and “clients”, or addressing claims of bullying etc., any potential indirect discrimination can be justified.
Speaking English while on duty
This is a situation that a few years ago I had to take action on while working in a hotel in the highlands that was employing various nationalities including a mix of Eastern European. Due to numerous complaints about disparaging remarks being made about them but not being understood therefore unable to respond I asked all staff to speak in English while on duty and in the public areas such as staff canteen.
This helped remove the tensions and I woudl have justified under the grounds of resolving mutual misunderstandings, encouraging inclusiveness within the working environment, and building up language skills vital for excellent customer service.