Appeal to the UK Employment Appeal Tribunal
Claimant’s case:
The Claimant then subsequently appealed to the UK Employment Appeal Tribunal (the equivalent of the Irish Circuit Court under the old system, or the Labour Court under the new system).
The Claimant maintained that the employer had insisted that the employee not speak in her “native Russian”. She maintained that this necessarily linked the instruction to her national origins, relying on a previous Employment Appeal Tribunal case of Dziedziak –v- Future Electronics Ltd. She maintained that simply linking the instruction to the Claimant’s nationality was sufficient to amount to less favourable treatment.
Respondent’s case:
The Respondent maintained that the Employment Tribunal had correctly identified that the same instruction had been given to two other employees (who the Claimant had named as comparators) and secondly that the same instruction would have been given to any other employees speaking any language other than English in circumstances that gave the Employer cause for concern.
Decision:
The UK Employment Appeal Tribunal held that the Employment Tribunal did not reject the Claimant’s complaints on the basis that the instruction that she should not speak Russian in her workplace could not give rise to a complaint of direct discrimination (or harassment). The Employment Appeal Tribunal found that the correct comparators were not the other two Russian speaking colleagues, but were in fact any person for whom the Employer had similar grounds of concern.
The case also addressed an issue of fact as to whether or not the instruction amounted to harassment of the individual employee. It found that it did not. It would appear therefore that the view taken in the UK is that it is reasonable to require employees speak only one language in the workplace, irrespective of their native language, provided there are objectively justified reasons for this requirement.
The Position in Ireland
If this decision were followed in Ireland, one would assume that it would be therefore lawful to require employees to speak in English only, if other languages were not understood by the day-to-day management, who might need to understand the conversations of the employees. Of course it would have to be shown that there actually was a need to understand all of the employees’ conversations.
Similarly, this could also operate in relation to languages other than English. For instance in a call centre all staff are expected to be proficient in a particular language, often using complicated technical terms etc. It would not be unreasonable, using the reasoning of the UK Employment Appeal Tribunal in this case, to insist that all conversation be in that target language to ensure that any work related issues which cropped up could be tackled consistently, and indeed also to ensure the dissemination of knowledge amongst the team. In addition, the same principles might apply with regard to staff being supervised by persons who were not fluent in the language being spoken between two employees under their charge, whether than language was English or any other language.
One could perhaps think of a different scenario that might arise in Ireland, whereby in some limited areas staff might be required to conduct their business either exclusively in Irish, or mainly in Irish. Some Gaeltacht businesses already require fluency in Irish in order to serve their Irish speaking customers; in some cases insisting that the customer be addressed in Irish, unless a contrary indication is given.
The essential question therefore is whether or not the use of a particular language, or prohibition of another language is a necessary requirement for the business which could not be achieved by other non-discriminatory means.
In essence therefore the test is a two-part test: –
1. Is the instruction to use a particular language (or not use a particular language) discriminatory? The answer to this question will possibly be “yes”.
2. Is this discrimination objectively justified for a bona fide business reason, to be achieved by appropriate and necessary means? Necessary in this context implies that the business aim cannot be achieved using other, non-discriminatory means.
Conclusion
Provided that a business can show a legitimate need for the use or non-use of a language, and such need is being met in an appropriate and proportionate way, and cannot be met by a less discriminatory method, then such a practice will be lawful.
Full case decision:
http://www.bailii.org/uk/cases/UKEAT/2015/0186_15_2010.html
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