Maybe surprisingly for a country which has traditionally overcome its limited second language capability by slowing its speech and raising its voice, it is not the UK which is in the news for challenging an EU jobs list advertisement requiring candidates to possess certain foreign language skills.
Instead it is Italy and Spain which have taken on a ruling that the list’s requirement for applicants to possess one EU language including a reasonable facility in French, German or English. The effect of that condition is that if you are Italian or Spanish, you need one of those languages as well to get on the list, but if you have English, French or German, that would be enough by itself. The EU’s argument in defence is that possession of one of those “key” languages shows that you are most readily employable (a not unreasonable position, one might think, at least based on a 2012 EU survey showing them to be by some margin the most spoken languages in the region), and also that it facilitates correspondence between the candidates and the European Personnel Selection Office responsible for the list (EPSO).
The General Court of the EU was unimpressed. The requirement was discriminatory against those whose first languages were not English, French or German, it said. In addition, any correspondent with an official EU body like EPSO has under EU rules a right to communicate and be replied to in the EU language of his choice. The EPSO language conditions were therefore ruled unlawful.
This is very much a case on its own facts, in particular because of the EU’s own rules about the use of Member State languages in its workings. It does not mean that all language requests in job adverts are discriminatory. In particular, it does not in any way prevent employers from specifying bi- or multi-lingual candidates where the need for those skills can be objectively demonstrated. This might be a product of the geographical location of Head Office, suppliers, actual or intended customer base, etc., or it may be the language of a substantial part of the workforce. In addition, the employer would need to show the requirement for the employee actually to deal with Head Office, suppliers, employees, etc., in that language, to show that the need for those skills is real and not hypothetical or fanciful. The same applies to any stipulation made as to how good those language skills must be – if you assume that the greater becomes the level of fluency required the more likely you are to exclude natives of other countries, the greater the burden on the employer to show why it is necessary.
It is not a requirement that the recruiting employer shows that the role in question cannot be performed at all without those language skills. However, it should be able to show why possession of them would be materially more beneficial to the business than not. This might include factors such as speed and accuracy of communications, limiting of losses in translation, helping customers and targets feel served by someone who understands them, etc.
Such factors will vary in importance between employers but there is no reason in principle why possession of a particular language (perhaps even to the exclusion of those who don’t have it) should not be more valued by some businesses than technical competence or satisfaction of other parts of the job specification. The key to avoiding discrimination claims in those circumstances will be to put a statement of that that importance front and centre as a criterion in the literature around the recruitment. If is pulled out of nowhere at the last moment to disqualify a person who might otherwise reasonably have seen him/herself as the best candidate, there is obvious scope for the drawing of inferences by an Employment Tribunal that the language requirement is an afterthought only, not a genuine part of the selection decision.
Surprise statistical fact of the day: despite its less than glorious reputation in this area, the UK is not the least competent speaker of other languages in the EU, said that same EU survey. Gold and silver on that issue go to Hungary and Italy respectively, while the UK shares a lowly bronze with Portugal.