Uber has won the right challenge Transport for London (TfL) in court over new rules which would require its taxi drivers to pass English tests.
From 1 October, TfL wants all private-hire drivers to undergo reading, writing and listening tests 'to enhance public safety'. While the High Court has accepted this in principle, it has permitted, Uber to challenge over the ability to make exemptions for some drivers.
Uber had initially supported the test, but now argues the requirement that drivers provide a certificate showing they have an intermediate level of reading and writing is unnecessary and costly.
It estimates that thousands of its 30,000 London drivers would be affected by the change.
TfL said: 'We note that the court has refused permission for judicial review of the principle and standard of English language test.'.
A requirement to speak English (or another particular language) in the workplace could found a claim of indirect race discrimination. Although such a rule appears to be neutral, because it applies to everyone in the workplace, if an employer cannot show that it is a proportionate means of achieving a legitimate aim ie that there is a good business reason for the rule and there is no less discriminatory way of achieving the requirement then the claim will be made out.
In addition, a requirement not to speak a particular language at work may give rise to less favourable treatment because of something intrinsically linked to an employee's nationality or national origins and therefore give rise to a direct race discrimination claim. There is no justification defence available to an employer in a direct race discrimination claim, even if it has good reasons for its actions.
The Acas guide advises that:
'Employers should be wary of prohibiting or limiting the use of other languages within the workplace unless they can justify this with a genuine business reason. For example, telling two employees that they must speak English to each other outside of business operations when their first language is Russian could be potentially discriminatory. However, an employer might be able to justify this if other employees feel excluded or bullied because they cannot join in 'in the course of their employment'.'
So can employers require workers to communicate in English?
On the face of it, such a requirement would be indirectly discriminatory and would need to be objectively justified. The question is can the employer show there are legitimate business reasons to speak a common language? The answer is possibly.
It may be that the requirement would reduce 'misunderstandings' or employee/customer safety could be the paramount consideration.
It could also be conducive to good employee relations and help promote cohesion. For example, if English speaking employees do not understand what their colleagues are saying in a different language, they may feel excluded or suspect that their colleagues are talking about them.
If an employer decides that it has good business reasons to justify a language requirement at work, it should ensure that:
- the requirements of the policy are clear,
- it is unrelated to any employee or group of employees' race,
- it is applied in a consistent way to employees of all nationalities, and
- it is a requirement to speak English rather than a requirement to not speak a particular language or languages.
The case law
There have been various cases on this issue in recent years. The relevant cases are:
In Dziedziak v Future Electronics Ltd UKEAT/0270/11 the EAT upheld an employment tribunal's decision that an instruction given by a manager to an employee to not speak in her own language (Polish) at work was direct race discrimination on the grounds of her nationality.
In Kelly v Covance Laboratories Ltd UKEAT/0186/15, a similar instruction was given by a manager to an employee to not speak in her own language (Russian) at work but, in that case, the EAT upheld the tribunal's decision that the motivation for giving this instruction was because she had been acting suspiciously at work and the employer, who carried out animal testing, was worried that she was an undercover animal rights activist.
In Jurga v Lavendale Montessori Ltd ET/3302379/12 and ET/3300884/13 a successful race harassment claim, an employer failed to properly deal with an employee's grievance following a colleague's complaint about her speaking Polish with other Polish colleagues during her breaks. What's interesting is the tribunal took into account that no similar issue had been raised with Italian employees speaking Italian at break times.
When trying to objectively justify a potentially indirectly discriminatory language policy, employers will need to show they have considered whether there is any less discriminatory way of achieving their aim, including:
- What level of English is actually needed for the role? For example, requirements for a customer facing role are likely to be different to those for a back office role.
- Can interpreting facilities be made available. For example, are any existing employees multi-lingual and able to assist with interpreting at meetings? Could language apps be installed on IT equipment to assist with communications?
- Multilingual safety signs, notices and communications could be put in place.
- Workplace policies (including equality and diversity and bullying and harassment) and training on these should be put in place to deal with potential issues of exclusion of others who do not speak the same language.