Many employers will have employees in the work place for whom English is not their first language, or who may be fluent in and prefer to use a second language. From time to time, the use of another language in the workplace may become problematic for an employer, but the question is, what can be done about it?

The law states that it is discriminatory to either:

1. Treat one employee less favourably than another employee because of their race or nationality – this will include their use of a language other than English related to their nationality. This is known as direct discrimination; or

2. Apply a rule that cannot be objectively justified to all employees that puts or would put employees of a particular race or nationality at a disadvantage – this will include a rule that all employees must speak in English whilst at work. This is known as indirect discrimination.

Over recent years we have seen three cases brought in the Employment Tribunals that have arisen from an instruction by an employer to an employee that they must not speak in their first language.

The first was Dziedziak v Future Electronics Ltd which went to the Employment Appeal Tribunal in 2011. In this case, a Polish employee, Mrs Dziedziak, was instructed by her manager not to speak in her own language at work. No one else was given the same instruction, although there were employees of different nationalities in the work place. This means that Mrs Dziedziak was treated less favourably than other non-Polish employees, which fell within direct discrimination above. There was not a general rule that employees should only speak English as the instruction was only given to her, and so this did not fall within indirect discrimination. The Employment Appeal Tribunal found that Future Electronics had no reasonable explanation for its actions and therefore concluded that the instruction to Mrs Dziedziak not to speak her own language was direct discrimination on the grounds of her nationality.

Following this, in Jurga v Lavendale Montessori Ltd a Polish teacher brought a similar claim against her school for an instruction that she must not speak in her own language. There were two aspects to this case:

First, the school had a general rule that applied to all staff that they must speak in English in the classroom or in front of the children. The rule was objectively justified on the basis that the use of English was necessary to effectively teach the children in the school. Therefore, this did not amount to indirect discrimination.

Second, another teacher objected to Mrs Jurga speaking to her colleagues in Polish during breaks and complained to the school that it was rude and exclusionary. The school instructed Mrs Jurga not to speak in Polish. They did not issue a similar instruction to teachers of other nationalities who spoke their own language. This is the same instruction that we saw in Dziedziak v Future Electronics Ltd and the Employment Tribunal concluded that the school had no reasonable explanation for its actions and therefore concluded that the instruction to Mrs Jurga not to speak her own language was direct discrimination on the grounds of her nationality.

In 2015, a further case was considered by the Employment Appeal Tribunal: Kelly v Covance Laboratories Ltd. This case followed a similar pattern to those above, Mrs Kelly worked in an animal testing laboratory which had previously had animal rights activists working undercover coming into the company to obtain information, and had had violent assaults on staff.

Mrs Kelly’s line manager became concerned that she may be an animal rights activist because she was acting unusually at work – this included using her mobile phone a lot whilst at work and having long conversations in Russian on her mobile phone in the office toilets. He instructed Mrs Kelly not to speak in her own language whilst at work. When Mrs Kelly objected, he then also instructed two Ukrainian colleagues who also spoke Russian at work not to speak Russian.

As in the above two cases, this instruction would amount to direct discrimination on the grounds of her nationality. However, in this case the Employment Appeal Tribunal found that the instruction to Mrs Kelly was justified due to the concerns about animal rights activists. The Employment Appeal Tribunal also took into account that a similar instruction had been given to the two Ukrainian colleagues.

What do you think of this?

If you have employees who use another language in the workplace, does this cause you a problem in terms of productivity, health and safety or exclusion of other colleagues?

If you’re considering introducing a requirement that employees not speak their own language or that they speak only in English whilst at work you may be able to justify this and avoid a successful discrimination claim against you, but I’d recommend you seek advice before doing anything and am happy to speak to you about this.

I can be contacted on 01484 821309 or at katebooth@eatonsmith.co.uk