Author: Priya Cunningham at Thompsons Solicitors (see website)
In a very recent case in the Employment Tribunal in Aberdeen, a Polish woman who was banned from speaking Polish to anyone, including other Polish workers, has been awarded more than £5,000 in compensation. In that case the employer had insisted that the employee speak English to all staff, including Polish staff. This made communication overcomplicated and lengthy. The employer also made very racist comments referring to Polish staff as “fucking Poles” and “fucking Polish”. The Employment Tribunal found in that the employer’s actions in this case amounted to racial harassment. In this case there was no justification for the requirement that all staff should speak English and the Claimant could have carried out her job more effectively if she had been able to speak Polish with other Polish staff.
This is in line with the judgement of the Employment Appeal Tribunal in the case of Dziedziak .v. Future Electronics Ltd 2012 where the Employment Appeal Tribunal held that a Polish employee who was told not to speak in “her own language” at work had been discriminated against.
It is crucial that employers can show objective justification for asking employees to speak English. In the case of Kelly .v. Covance Laboratories Ltd the employer had previously employed staff who had been undercover animal rights activists and had caused disruption to the employer’s business. The employer became suspicious of Mrs Kelly’s behaviour after she would have lengthy telephone discussions in Russian from the office toilets. As such, they asked her and two other Russian speaking employees to stop speaking Russian at work.
Mrs Kelly’s claims for race discrimination and harassment failed as the Employment Appeal Tribunal found that the reason for the employer’s request to speak English was not in any way connected to race or ethnicity. Rather, the instruction was given because the employer had a genuine reason to be suspicious of Mrs Kelly’s behaviour.
ACAS have published guidance entitled “Race Discrimination, Key Points for the Workplace”. This covers language and language requirements the might apply to employers who employ staff from outside of the United Kingdom. The advice sets out the following:
1) Employer should specify that they operate in a certain language, this will most likely be English for the purposes of effectively running their business. For example, effective communication in areas such as health and safety.
2) Recruit an employee who has the necessary level of English required for the job. However, in doing this employers cannot presume that people of a certain race or ethnic background will not have the necessary level of English required.
3) Employers should consider offering assistance to employees whose English is limited in circumstances where it is necessary, for example during training, or during a disciplinary.
If you have any concerns about discrimination, you should contact your trade union or ACAS for advice. The Employment Tribunal operates strict time limits and claims for discrimination must be conciliated through ACAS within 3 months, minus a day, of the date on which the incident that you are complaining of occurs. A claim cannot be pursued in the Employment Tribunal unless it has been conciliated through ACAS first.