We live in a multi-cultural society and many of our key industries, including housing, construction and care would probably crumble without workers from other countries. The government's new Immigration Bill will require all public sector workers in customer facing roles to speak fluent English, citing care workers in particular. Should this be extended to the construction and housing sector? Is it appropriate to require workers to only speak English during working hours, or to stop them from speaking their native language at work?
Kelly v Covance Laboratories Limited
In late 2015 the Employment Appeal Tribunal had to consider the appeal of Ms Kelly, a native Russian speaker, who claimed direct race discrimination and harassment because she was told not to speak Russian at work.
Covance carries out animal testing. It suspected Ms Kelly may be an animal rights activist, and having concerns about security, told her not to speak Russian at work, in order that conversations in the workplace were capable of being understood by her English-speaking managers. The same instruction was given to two of her colleagues not speaking English at work. The Tribunal held it was possible for such an instruction to amount to an act of direct race discrimination or harassment, as language is "intrinsically part" of nationality, but in this case, there had been no discrimination. Covance had a reasonable explanation for requiring Ms Kelly not to speak Russian, which was unrelated to her nationality or national origins (included within the definition of race under the Equality Act 2010). Her appeal was also dismissed.
Whilst Ms Kelly lost her case, the principle is clear, telling a worker not to speak their native language at work could be discriminatory.
Before considering how this might apply in the construction, housing and care sectors, let's remind ourselves of the legal framework relating to discrimination (under the Equality Act 2010) and health and safety.
Direct discrimination is about treating someone less favourably than someone else in materially similar circumstances because of their race, nationality, ethnic origins, disability etc. For example, 'don't speak Polish at work'.
Direct race discrimination cannot be justified, so the only defence is to show the actions were for reasons unconnected to race.
Indirect discrimination is harder to spot but more common in the workplace. It's where the application of a rule, such as 'you must speak English at work', is applied to everyone, but has a disproportionate impact on a sub-group of the whole, such as workers whose English is not fluent.
It can be justified if the employer can show the rule was a proportionate means of achieving a legitimate aim. This means having a strong business objective, and there being no less discriminatory way of achieving it. It's this second part that is hard to get home on.
Harassment is unwanted conduct directed at someone because of a protected characteristic that has the purpose or effect of violating their dignity or creating a degrading, offensive, intimidating or hostile environment. It doesn't matter if the harasser didn't mean it to be degrading or offensive, the effect is key (although there is a reasonableness caveat).
Victimisation means treating a person less favourably because they have complained (or intend to complain) about discrimination, or because they have given evidence in relation to another person's complaint.
Don't forget that language is not just about nationality and race. A worker's first language may be British Sign Language, not spoken English, or their ability to speak English may be affected by a disability.
Under the Health and Safety at Work Regulations 1999, there is no general requirement for workers to speak English, the relevant duty is for employers to provide comprehensible information to workers to ensure a safe workplace.
Under section 2 of the Health and Safety at Work etc Act 1974, employers must ensure so far as is reasonably practicable, the health, safety and welfare at work of all employees and under section 3, of all those whose safety might be affected by your business. Although under the Act and H&S Regulations there is no general requirement for workers in the UK to speak English, employers must ensure that to meet its health and safety duties, information that impacts on health and safety is provided that is comprehensible to everyone in the workplace.
So how can you ensure effective communication with a diverse workforce and user group?
It is clear that whether you are building, managing construction sites or providing housing and care services to vulnerable people, communication is key to minimise risk and provide a safe service.
As explained above, telling workers not to speak their native language is likely to be direct discrimination, unless you are doing it for a reason not connected to their nationality (as with Kelly v Covance). However, requiring workers to speak English at work to ensure clear and effective communication could be a legitimate aim (and therefore justifiable), but when your workforce is made up of many different ethnic groups, might communication be more effective in their second language? Groups often find effective ways of communicating amongst themselves, whether using an informal interpreter, or following their colleagues' lead.
Construction industry research suggests that the induction process is key to reducing accidents and gauging the level of English of new recruits as it sets the foundation for safety, how staff communicate and their engagement with the workforce. Induction materials and on-going 'tool-box' talks must be clearly understood. A worker who neither understands nor feels confident admitting it is not likely to ask for help or report problems.
The lines become blurred when clients or customers ask workers to speak in their native language to ensure they can communicate effectively. It's arguable that a care worker in a supported housing scheme should speak in their client's language at times to ensure they discharge their duty of care towards them.
The Equality Act Employment Code of Practice acknowledges that English is the business language of Britain and is likely to be the preferred means of communication in most workplaces. But this will be context specific, and in some situations whilst English will be the predominant language, it could be not only discriminatory, but unsafe to ban other languages during work hours.
So what's the practical solution?
- Consider whether it's necessary to require everyone, or groups of workers to speak English during their working day. Could it benefit the organisation and its users for workers not to speak English all the time?
- Does having English as the predominant language have a disproportionate impact on some of the group, or might it be degrading, offensive or intimidating?
- Could you achieve your objective in a less discriminatory way?
- Could you justify requiring English to be spoken in group and formal procedural situations, but allowing foreign languages during breaks and amongst groups of workers who all speak the same language (if they revert to English when a non-native speaker joins the group)?
- Could you help staff by offering English lessons (either on site, or in conjunction with similar employers or local colleges) and foreign language workshops to promote inclusion?
- Involve your staff! Ask them what they think is reasonable and what makes them feel included or left out.
For any employer, this is a respect at work issue which should be addressed to improve workplace relations, retention and productivity. For employers with added health and safety and safeguarding duties, it is doubly important. How you manage a multi-lingual workforce will depend on the business needs and the specific mix of staff, but hopefully these practical pointers will help to find a solution.