Instruction not to speak Polish not race discrimination

Direct race discrimination occurs where, because of race, a person treats another person less favourably than they would treat others. An employee claiming race discrimination therefore needs to demonstrate less favourable treatment when compared to a real – or a hypothetical – employee  whose circumstances are not materially different from their own.

The ACAS guide states that “employers should be wary of prohibiting or limiting the use of other languages within the workplace unless they can justify this with a genuine business reason.”  For example, telling two employees that they must speak English to each other outside of business operations when their first language is Russian could, potentially, be discriminatory.  However, an employer might be able to justify such an instruction if other employees feel excluded or bullied “in the course of their employment”. 

In one particular case the employee worked for an organisation who carried out animal testing and it had previously received attention from animal rights activists.  Some of its employees had been assaulted and the company had concerns about activists working undercover to obtain information to damage the company. 

There were concerns about one particular employee’s conduct and performance from early on in her employment.  She frequently used her mobile phone at work, having long conversations in her native language in the office toilets.  The company became suspicious, thinking that she could be an animal rights activist who had infiltrated the company; something that had happened previously. Because of these suspicions, she was instructed not to speak her native language at work and that any conversation that she had in the workplace should be able to be understood by English speaking managers.  The employee objected, saying that two Ukrainian colleagues spoke their native language at work.  The employer responded by telling them that they too had to conduct conversations in English. 

Despite this, the company remained dissatisfied with the employee’s conduct and performance and, at her two month probation review, it stated its intention to start a formal capability procedure.  At this point, the employee raised a grievance and complained of race discrimination.  It was discovered that the employee had been previously convicted of benefit fraud and given a suspended prison sentence, and the company invited her to a disciplinary hearing to consider an allegation that she had failed to disclose her criminal conviction in her job application.

The day before the disciplinary, she resigned and brought claims in the employment tribunal, including those of direct race discrimination and racial harassment. 

The tribunal decided that the instruction that was linked to her race and nationality, and therefore could amount to unlawful direct discrimination and harassment.  However, it said that, at that stage, the burden of proof shifted to the respondent and that the company had provided a reasonable explanation for its actions that were not related to the employee’s race or nationality.  It said that the reason for the instruction not to speak her native language at work was not because of her nationality, but because of the suspicions that the company had about her behaviour, taken in the context of previous difficulties it had experienced with animal rights activists and the security issues arising from the type of work in which the company was engaged. 

The tribunal considered that it was important that conversations in the workplace were capable of being understood by its English speaking mangers.  It also said that the same instruction would have been given to hypothetical comparators, i.e. another employee speaking a language other than English in circumstances that gave cause for concern. 

The upshot of this case is that if an employer decides that it has a good business reason to justify a language requirement, it should ensure that the requirements of the policy are clear and that it is applied in a consistent way to employees of all nationalities.  For example, an employer may decide that there is a requirement for an employee to speak English in the workplace if that might exclude other employees or other employees might feel bullied because they cannot join in in that conversation.