Posted on Apr 24, 2014 in Employment by Amy Jones
Employees at Hobbycraft warehouse told by their employers that they were required to speak English while working or potentially face disciplinary sanctions.
I saw an interesting article recently reporting that employees at a Hobbycraft warehouse in Staffordshire had been told by their employers that they were required to speak English while working or potentially face disciplinary sanctions. The article noted that the ability to speak fluent English was already part of the recruitment process but the employer was going further. The policy is said to only apply to working hours in the warehouse and will not apply during breaks in social areas. So is it a risky strategy?
It seems that a policy existed already but breaches had been dealt with informally before now. The regime, which now appears to be being policed more stringently, applies to everyone and not just foreign employers or those whose first language is not English. On that basis it seems unlikely that it would amount to direct discrimination. If the policy was being targeted against a specific individual of a particular nationality (as has been seen in a recent case) the position would of course be different.
But does it potentially amount to indirect discrimination? Does the policy put foreign workers at a disadvantage? Possibly, although any claimant would have to show what the disadvantage was. Even if the policy was deemed to be discriminatory, this does not mean that Hobbycraft's policy could not be defended on the grounds that is was justified. Hobbycraft said that their justification was that it was aimed at creating a good working environment where all colleagues can communicate effectively. Clearly in a warehouse the ability to pass on instructions clearly and quickly can be very important, not least for of health and safety reasons. The promotion of a good working environment may be a less definitive reason (especially as the ban does not apply to discussions in a social area).
So could an employer go further and insist that all discussions within the workplace occur in English? This could be harder to justify although ensuring that everyone speaks the same language does reduce the potential for people (who do not speak whatever language others do, be it English or otherwise) to feel marginalised. Putting the argument on its head, is it possible that an English speaker (who does not speak another language) could feel harassed if his colleagues constantly speak in language he cannot understand? Could such a policy be justified as an attempt to foster unity and harmony within a workplace?
In a world where individuals from different nationalities and backgrounds often now work together, the challenges for employers seeking to strike the right balance can be challenging. Having clear and fair business reasons to justify an approach is key. Situations involving potential concerns about indirect discrimination always turn on their particular facts and such policies do not appear to be widespread. But I wonder if they will become more prevalent?
Amy Jones is an Senior Solicitor in our Employment Law team. For more information on this or any other employment law related issues, please contact Amy on 01382 229111 or email firstname.lastname@example.org
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