Discrimination risks: requirement to speak English at work

The requirement to speak English at work at work is a policy area where employers should tread carefully to avoid discrimination. A source, considers recent legal controversies and gives tips on drafting employment policies.

While many workplace policies come as standard, many businesses will have particular requirements they want to encompass which may stray beyond the usual. When doing so, employers need to be careful as policies that apply equally to all employees may disadvantage certain nationalities and religions.

Requirement to speak English at work

A common question employers ask is whether they can require their employees to speak only English while at work.

Many organisations employ staff for whom English is not their first language and when employees share a common language which is not English and wish to speak to their colleagues in their native language, this can cause problems.

As language is an intrinsic part of a person’s nationality, a requirement that workers do not speak in their native language while at work could amount to direct race discrimination.

The Acas guide Race discrimination: key points for the workplace warns employers to be wary of prohibiting or limiting the use of other languages in the workplace as it could potentially be discriminatory.

That said, it is possible to limit the use of languages other than English at work, provided that the policy applies to all nationalities and the employer has justifiable (and non-discriminatory) reasons for imposing the policy.

Under the Immigration Act 2016, there will be a new duty for public authorities to ensure their workers in customer-facing roles speak fluent English. In determining how to comply with this duty, public authorities will be expected to follow a statutory code of practice, which is expected to come into force in October 2016.

The code of practice will outline the minimum standard of spoken English to be met, the action to be taken where someone does not meet that standard, the procedure to be operated to deal with any complaints and how the public authority can comply with its other duties, including its obligations under the Equality Act 2010.

Employers that want to have a workplace language policy should specify that English is the language of operation for their business (rather than specifying a requirement not to speak any particular language) and should make sure the policy is applied equally across all nationalities.

Employers should also ensure the policy can be justified with a genuine business reason; for example, health and safety purposes, security requirements or business efficacy, and that it applies only in relation to the actual work being performed by employees.

Bear in mind, for example, that a requirement for employees to speak only English during break times will be difficult to justify.

Tips for drafting non-discriminatory workplace policies

• Conduct an audit of your workplace policies. Where a policy is potentially discriminatory identify the rationale behind the policy. Are there good business reasons for the policy and can they be justified, for example, by health and safety? Is the policy applied consistently across the workforce?
• Familiarise yourself with the Equality and Human Rights Commission (EHRC) EmploymentStatutory code of practiceand the EHRC Guide on religion and belief and ensure you are aware of different religious beliefs.
• Consider whether your policies are operating fairly. Are they based on stereotypes or Western culture and are they still appropriate to a modern workplace?
• Monitor the diversity of your workforce, consult with staff and listen to suggestions for improvements to policies and staff facilities.