1.8 million employees in the public sector who have customer-facing roles will be expected to be able to speak fluent English to customers. The legal position for private companies wanting to introduce a similar requirement is less clear. How employers assess fluency can be controversial.
The Immigration Act 2016 came into force in December last year and introduced a Code of Practice for employers to follow with the intention to increase standards in order to meet “the public’s reasonable expectation to be able to speak English when accessing public services”.
Employers are free to decide what they need for roles in their own business, but they should not breach their duties under the Equality Act 2010 by discriminating against staff.
Some employers may think it important for all their staff have a perfect command of English, but imposing such a requirement is potentially discriminatory. The provision, criteria or practice (PCP) could disadvantage those whose first language is not English and so amount to indirect race discrimination unless the requirement can be objectively justified and is proportionate means of achieving a legitimate aim.
Practically, so long as someone’s English is good enough for them to carry out their duties, any requirement to have a better command of the language could lead to a complaint to an Employment Tribunal. This means that the same employer could have a variety of roles with different language requirements – such as working on reception to require a higher proficiency than roles which require minimal interaction in English, for example, cleaning roles.
Employers can easily face problems when trying to exercise control over what language is used in the workplace.
In 2010, an Employment Tribunal found that an employer directly discriminated against a Polish worker when instructing him not to speak Polish in the workplace Dziedziak v Future Electronics Ltd.
In 2015, the Employment Appeal Tribunal agreed that telling someone to only speak a particular language in the workplace could be discriminatory. Kelly v Covance Laboratories Ltd.
The Equality and Human Rights Commission Employment Code of Practice states: “Employers should make sure that any requirement involving the use of a particular language during or outside working hours, for example during work breaks, does not amount to unlawful discrimination”.
Conversely, Uber has become embroiled in a dispute with Transport for London and wants the rules applying to its drivers passing an English test to be relaxed. Rather than wanting their drivers to speak English, Uber is challenging TfL’s rule that their drivers pass a written English Test as part of the license application process which TfL say is in the public interest, namely the “safety, welfare and convenience of passengers.” Uber believe the ruling would put at least 33,000 drivers out of business.
TfL aside, just what the appropriate standard of English is will be something that each employer will need to determine on a role by role basis. Difficult decisions may have to be made about what degree of fluency is required and how this should be assessed.
Not all workplaces have a policy on language at work. Employers could be proud of the diversity of languages spoken by their workforce. For those with a policy requiring English to be spoken, unless their aim is legitimate or who go a step further and prohibit the speaking of another language at work, they run the risk of a costly discrimination claim.
About the Author
Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.
He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.