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Legal Eagle: Language in the workplace

Elsie Kinghorn

Elise Kinghorn, an employment lawyer with Maclay Murray & Spens LLP, considers the possible discrimination implications of variety of language in the workplace

Why is the issue of language in the workplace relevant for UK employers?
 
A Labour Force Survey conducted by the Office for National Statistics looked at the diversification of the labour market between 2002 and 2012 and found that migrant workers were responsible for almost all of the growth in the UK labour market during that period. The significant increase in the number of migrant workers has resulted in a corresponding increase in workers where English is not their first language. It is therefore inevitable that language issues will continue to arise in UK workplaces. The language spoken by an individual is often one of the main indicators of their nationality or ethnic origin. With race being one of the nine protected characteristics under the Equality Act 2010, employers need to tread carefully in dealing with any language issues. Failing to comply with discrimination law can have significant financial and reputational impact.
 
Why might an employer impose a requirement on workers to speak English?
 
Avoiding misunderstandings will likely be key for most businesses, as the consequences of any confusion in the context of financial, legal or health and safety requirements could be disastrous. There is also the possibility that employers miss the signs of bullying or sexual harassment among foreign workers because they do not understand the language being used. Additionally, non-speakers of a language could also feel excluded when their colleagues are speaking in a language that they cannot understand.
 
What legal considerations should employers take into account?
 
To ban a specific language in the workplace would likely amount to direct discrimination on the grounds of race. Additionally, a blanket policy requiring English-only to be spoken in the workplace is likely to be indirect race discrimination. This is because, while the policy would apply to all workers, those for whom English is not their first language would be at a disadvantage in complying.
 
Indirect discrimination can be objectively justified as long as the employer can show that the policy is a proportionate means of achieving a legitimate aim. For example, a requirement that all staff in customer-facing roles speak English may be justified but this is unlikely to be proportionate if applied during break times and in social areas where there is no interaction with customers. Employers will, therefore, need to fully understand the make-up of their workforce and the variety of roles, before implementing any language policy.
 

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