In recent years, the influx of migrant workers from Eastern European countries in particular has resulted in a highly diverse range of cultures and identities within the United Kingdom’s labour force.

In certain lower paid sectors such as agriculture and hospitality, there is a particular reliance on those whose first language is not English.

The Equality Act 2010

Most employers recognise the benefits of a diverse workforce and seek to promote equality. The Equality Act 2010 (the Act) protects employees and others against discrimination on various grounds including that of race. Race includes colour, nationality and ethnic or national origins.

Less favourable treatment because of race is unlawful direct discrimination. Unlawful indirect discrimination can be harder to recognise. It involves a provision, criterion or practice which applies to all but which puts people in a certain racial group at a particular disadvantage.

Compliance with discrimination legislation in the workplace is therefore crucial, not least because of the significant financial penalties and negative publicity potentially involved where an employee brings a discrimination claim. Compensation recoverable in the employment tribunal for a breach of the Act is uncapped.

Only indirect discrimination can be objectively justified by an employer. Where an employer can show objective justification the treatment will not be unlawful.

Objective justification involves showing that the provision, criterion or practice was a proportionate means of achieving a legitimate aim. Broadly, this means showing that there was a good business reason for it and no less discriminatory way of meeting the desired aim.

Requirement for certain language skills

Can an employer require its employees to have excellent English skills? On the face of it this would be indirectly discriminatory because those who are not native English speakers are less likely to be able to comply with it.

However, if the employer can show having an excellent English speaker is necessary for the satisfactory performance of the job they should be able to objectively justify the requirement.

This will depend entirely on the role. If the role is for example customer facing it is more likely it could be objectively justified compared to a role on a production line where only basic English skills may be necessary to perform the role satisfactorily.

More troubling for employers is whether they can require workers to communicate in a common language – generally English? Again, on the face of it, such a requirement would again be indirectly discriminatory and would need to be objectively justified.

Can the employer show there are legitimate business reasons to speak common language? The obvious one may be that it would reduce “misunderstandings”, whether legal, financial or in relation to health and safety. It could also be conducive to good employee relations and promote cohesion.

Bullying and harassment

If English speaking employees do not understand what their colleagues are saying in a different language, they may feel excluded and may suspect that their colleagues are talking about them. Employers will need to be mindful of the risk of bullying and harassment within the workplace.

Any such complaints raised should be dealt with on a case by case basis under the employer’s relevant policies with appropriate training and support structures in place to manage such situations.

In the recent case of Dziedziak v Future Electronics Limited 2012, the Employment Appeal Tribunal upheld a decision that it was an act of direct discrimination when the employer told Ms Dziedziak, who was Polish, not to “use her own language”.

This was particularly problematic as while it is possible to defend a claim of indirect discrimination as being objectively justified there is no such defence to claims of direct discrimination.

Another recent employment tribunal case in which we acted for the respondent demonstrates the complexity which can arise for employers dealing with these issues.

The claim of indirect race discrimination was brought by a Portuguese national but was ultimately struck out at a pre-hearing review for having no reasonable prospects of success.

In the case P F Franco v Fyffes Group Limited, Mr Franco claimed that some of the line supervisors conducted some of their discussions in Polish and this amounted to the application of a provision, criterion or practice (PCP) which put persons who shared the characteristic of not speaking Polish, including him, at a disadvantage.

The claimant, although not English himself was unhappy that all employees were not required to speak English the whole time.

The Judge had a different view and considered that Fyffes could objectively justify this PCP and found that: ‘… To allow people who share a mother tongue to communicate in it is generally likely to lead to clearer communication and efficient management, and no sensible employer would try to suggest that two Polish workers should not speak in Polish between themselves. Of course it is quite different when someone who does not speak that language is also party to the conversation.’

As the employer in this case could demonstrate that management reminded Polish speakers to consider the needs of those without the language when they were around, this was considered by the tribunal a proportionate modification of the PCP.

As this was a packing/sorting type role in a factory, it did not require excellent English skills.

It is certainly likely to be difficult to justify imposing a particular language outside of working duties for example, after work at social events, during work breaks or casual conversations between colleagues.

Similarly, blanket rules or policies involving the use of a particular language within the workplace may also be difficult to objectively justify as a proportionate means of achieving a legitimate aim unless there are good business reasons for it, the position will depend on the facts of each case and employer’s particular circumstances

Staying on the right side of equality legislation: some practical pointers

When trying to objectively justify a potentially indirectly discriminatory language policy, employers will be expected to demonstrate that they have considered whether there is any less discriminatory way of reducing any disadvantage to a particular group, this may include:

• considering what level of English may be required for the role (if any) and to be able to demonstrate why this level is required
• If only basic words need to be spoken and understood in English to perform the role, consider English language classes. This could be potentially reinforced by sign language
• Interpreting facilities – this does not necessarily need to be at any additional cost to an employer’s business. A number of employees are multi-lingual these days and will be able to assist with interpreting at meetings. It may be there are various language apps that can be installed on IT equipment which can assist with communications.
• Multilanguage safety signs, notices and communications can be put in place – particularly for health and safety requirements
• Workplace policies should be put in place (i.e. on Equality, Bullying and Harassment). This should deal with issues of exclusion and being respectful of others who do not share the same language. Training should also be provided on these policies
• Individuals should be reminded to consider the needs of others who do not share the same mother tongue and to encourage a common language to be spoken when undertaking work activities
• Employers should encourage employees to learn from one another and also feedback any ideas on how communication can be facilitated within the workplace to remove any barriers.

The Equality Act 2010 Employment Code of Practice contains further practical guidance on this issue (see paragraph 17.44 onwards).

Sian Evans is a solicitor in the employment law team at law firm Shoosmiths