With the Equality Act 2010 celebrating its first birthday this October, one employer has made it into the headlines by implementing a "speak English only" policy during work hours.
The reported policy, affecting 120 warehouse staff based at a distribution plant in Burton upon Trent, does not apply during break times. The workers, primarily from Poland and Latvia, have reportedly been told that a common language will create a less divisive environment between workers from different nationalities and help them understand health and safety rules and instructions, which are given in English.
Could such a policy indirectly discriminate against those for whom English is not a first language? While having a requirement to speak English can be justified in some circumstances, such as a customer-facing role, a widespread implementation like this may be unjustifiable.
Q Is language a protected characteristic under the Equality Act 2010?
Not directly. However, a common language has often been interpreted as a criteria for defining nationality and ethnic or national origins, which are protected characteristics under the definition of race.
Q Isn't having a common language a good idea for the sake of creating a united workplace?
Perhaps. However, a blanket policy such as this may have the opposite effect, as the employees for whom English is not their first language may feel that they are being unfairly targeted, therefore creating more disharmony in the workplace.
Q Can requiring employees to speak English ever be justified?
Yes, provided that it is a proportionate means of achieving a legitimate aim. The employer will need to think carefully about what it is trying to achieve and must show that its legitimate business needs are sufficient to outweigh the discriminatory impact on the workforce and cannot reasonably be achieved by less discriminatory methods.
Q Do our workplace policies need to be available in every language?
It depends on the employer and the workforce, but reasonable measures should be taken to ensure that employees are able to understand any such policy and have access to it. There may be times when it would be appropriate to reproduce certain policies in a different language if, for instance, the majority of your employees speak one specific language.
Q Can a poor grasp of the English language be a reason to reject a candidate for a role?
It depends on the role in question and the level of English required. If it is a customer-facing role, it may be justifiable to require applicants to be able to speak good English. However, discriminating on that basis for a role in a stock room, for example, is likely to be more difficult to justify.
There has been recent controversy regarding the requirement under EU law to allow doctors and nurses from the EU to practice in the UK without a requirement to speak English. The British Medical Association has recently commented that it plans to introduce an English language competency test based on a requirement to understand and communicate in English throughout the medical profession.
Q How has the position changed under the Equality Act?
It hasn't, as race discrimination was already unlawful under the Race Relations Act 1976. The question of whether or not a "speak English only" policy can be justified has not yet been tested in the tribunals and courts under the Equality Act 2010.
Kylie Morsley, solicitor, Thomas Eggar