Mind Your Language: Polyglot Personnel Problems

Few employers nowadays would be so unaware of race discrimination legislation, or so indifferent to it, that they would instruct employees whose first language was not English not to speak in that language at work. At least not without a very good reason. A claim for discrimination (less favourable treatment) or harassment (violation of workplace dignity) might generate language of an entirely different nature…

So what might amount to a very good reason? “Making others feel excluded” might tick the right box here, as long as this related to communication about work related issues during work time. It is plain common sense that if Polish employees converse with each other in Polish during the lunch hour, this would hardly justify a manager’s reprimand or a complaint from an excluded colleague.

What about workplace security? A recent case in the Employment Appeal Tribunal, Kelly v Covance Laboratories, addressed that very issue. The company worked in animal testing and was rightly concerned to protect itself against terrorist infiltration. It became suspicious of K, a new recruit of Russian nationality, when she was overheard having long conversations in Russian on her mobile phone in the office toilets. She was warned not to speak Russian at work, so that any conversations she had in the workplace could be understood by English speaking managers. In due course, facing a capability meeting and a disciplinary process for undisclosed criminal convictions, K resigned and brought claims for discrimination and harassment.

The claims failed. Although the instruction not to speak Russian could indeed have amounted to unlawful racial discrimination and harassment, its reason was not K’s race or national origins. The workplace security needs justified the instruction. It would have been given, the EAT found, to any other hypothetical employee speaking a language other than English in circumstances that gave the employer cause for concern.

As ever, a clear and consistent written policy about workplace language requirements will be likely to minimise scope for employee complaints. It is notably worth bearing in mind that whereas an instruction for English to be spoken will ordinarily be looked upon as neutral and compliant, an instruction for any particular language not to be spoken is likely to be fraught with danger.

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