Many workplaces are made up of several nationalities some of whom do not speak English as their native tongue. We are often asked by multi-cultural employers if they can introduce a company policy whereby employees are only permitted to speak English while at work.
This issue was dealt with in a Workplace Relations Commission (“WRC”) decision in January 2017 in the case of A General Operative v A Medical Device Company ADJ-00001835. In this case, a Polish employee claimed that she had been discriminated against on the grounds of race and nationality when she was instructed by her supervisor to speak English when working on a production line with others of a different nationality. The employee argued that no health and safety grounds existed which would merit such a policy in the workplace.
The employer, a medical devices company, employed 838 people from 14 countries, 10 of which did not have English as their first language. The employer gave evidence that a diversity workshop had been conducted a number of years previously and that guidelines on the use of native languages was one of the outcomes of that workshop. These guidelines were communicated to staff and the policy was posted on a noticeboard. In finding against the employee, the adjudicator held that the purpose of the policy was to foster inclusion in the workplace. The adjudicator stated that the practise was not discriminatory but in fact the opposite. It is important in this case however to note that the policy only applied when staff were working alongside others of a different nationality. The employee in this case was permitted to speak Polish at her breaks or if it occurred that there were only Polish people working on the production lines.
The issue was also dealt with by the WRC in the case of Potasinska v Bank of Ireland Security Services Ltd EE/2008/556. In that case, the employee claimed that she had been discriminated against on the grounds of race and nationality by her employer when the employer introduced a business language policy which meant she could not speak Polish at work. The employee argued that there was no business case for the policy as, in her role as a fund evaluator, she had no contact with clients. The employer denied that the policy was discriminatory and argued that the aim of the policy was to facilitate communications in a multi-lingual workforce. The employer also noted that employees were free to speak in their native languages during their breaks and outside of the office. In finding against the employee, the adjudication officer held that the employee was not discriminated against as the policy did not put her at a particular disadvantage. The adjudicator decided that the employee was fluent in English and was capable of complying with the policy. Unfortunately, the adjudicator did not make any comment on what the outcome of the case may have been if the employee in question was not a fluent English speaker and was not in a position to comply with the policy.
In another decision in the case of Dominik Andvzejeczak & Others v Microsemi Ireland Ltd DEC-2013-086, the Equality Tribunal accepted the argument made by the employer that a policy which provided that English was the business language was not discriminatory as it was necessary to ensure inclusion and to run a business in line with health and safety requirements. In that case, the employer employed 166 individuals from 14 different countries. The Equality Officer explored in detail whether the employees in that case were sufficiently fluent in English. Evidence was given that the employees were recruited through the medium of English, submitted CVs and were interviewed in English. The employer also facilitated and paid for employees to attend English classes.
Based on the facts of the above cases, if your organisation proposes to put in place and enforce a policy whereby the workforce must speak English during working hours the following steps should be taken:
- Consideration should be given at the outset as to whether the workforce is sufficiently fluent in English to ensure that the policy can be enforced in practice.
- A written policy should be developed and communicated to all staff. The purpose of the policy should be clearly outlined.
- A diversity workshop should be conducted where the rationale for the policy is explained to staff.
- The policy should make it clear that employees are permitted to speak their native language during lunch breaks.
- The policy should be enforced consistently.
Julie Austin, Associate, Employment Law Unit
This article first appeared as part of Legal-Island’s employment law update service. Find out more: www.legal-island.ie