The polish question catches out employer

Employers that advertise for staff in the UK and insist they must speak a language other than English take significant legal risks. Recently, Suffolk company Supreme Nutrition advertised in a local job centre for a factory operative who “must be Polish speaking”. The ad was amended after there was, reportedly, a flood of complaints.

The amended ad read: “Factory operative required to work in busy manufacturing plant in Acton, near Sudbury. Polish language would be advantageous but is not essential.”

Guy Guinan, partner at law firm Halliwells, said: “There will clearly be a risk that an employer could face a race discrimination complaint. The requirement in the ad suggests that Polish nationals will be preferred in comparison to applicants of other nationalities.

“However, the employer will have a valid defence if able to show that it was a genuine occupational requirement for the employee to be Polish-speaking.

“If it can be shown that the duties in this particular post do require a Polish speaker, the employer is in effect allowed to discriminate in the arrangements it makes for recruiting. In practice, the circumstances where a tribunal will find that a genuine occupational requirement applies are limited.”

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Only the Equality and Human Rights Commission can bring claims against job advertisement authors or publishers, because an ad can only ever constitute an intent to discriminate rather than an act. The penalty for the guilty party will be a fine rather than compensation.

“However, the applicant who applies and is subsequently refused employment can bring a claim and rely upon the advert as evidence that the reason for rejection was related to their race,” said Guinan.