A recent Employment Appeal Tribunal (EAT) case demonstrates the exposure employers face when they try to limit workers' use of their mother tongue in the workplace, especially when such limits are applied selectively rather than to all employees.
In the case of Dziedziak v Future Electronics Ltd 2012, a Reading Employment Tribunal held that there was an act of direct discrimination on the grounds of nationality when a line manager told Ms Dziedziak who was Polish, to not use "her own language" at work.
The situation arose at the end of October 2008 when Ms Dziedziak was having a work-related conversation at work with a colleague in Polish. She was called to a meeting shortly afterwards with her line manager who reprimanded her for speaking Polish, as a colleague had complained that their conversation was distracting her. Ms Dziedziak identified the person who might have complained and provided evidence of a personality conflict, supporting the claim of direct discrimination.
The Employment Tribunal found that whilst race is not the same as language, the fact that the Claimant was instructed to refrain from speaking "in her own language" rather than being told to not speak Polish at work or to only speak English, established an intrinsic link between the comment and her nationality. Consequently the use of those specific words meant the Claimant was directly rather than indirectly discriminated against on the grounds of her nationality.
On appeal the EAT expressed the view that the instruction would not have been directly discriminatory had Ms Dziedziak been told to not speak Polish or to only speak English although of course this could have amounted to indirect discrimination.
The employer, Future Electronics argued that an instruction to speak English could only amount to direct discrimination if that instruction was given because of an individual's race or nationality. However, it was clear on the evidence heard by the Employment Tribunal, that employees of other nationalities were not subjected to the same restriction as imposed on Ms Dziedziak. It was also clear on the evidence that there was no general policy in place that applied to all nationalities.
The workplace, on the evidence, was a highly cosmopolitan one. The instruction to speak English at work was a provision, criterion or practice (PCP) that put Polish nationals at a substantial disadvantage compared to other employees and could not be shown to be a proportionate means of achieving a legitimate aim. Future Electronics was unable to provide an explanation for this discriminatory practice and on the evidence, the Tribunal's view was that direct discrimination had occurred due to the singular nature of the instruction.
This is a slightly unusual case in that the Employment Tribunal found that there was an act of direct discrimination (which means that an employer can not rely on a defence of justification) even though the actions of the line manager were based on language which would amount to an indirect racial characteristic, in this case language. Previous cases have suggested that a language requirement can be indirect rather than direct discrimination, given that language ability or speaking, for example in Polish, is not limited to or the exclusive characteristic of Polish nationals, however, more Polish nationals will speak the language hence the indirect nature of the rule.
With increasingly global / international workforces and employees more often working across different jurisdictions and with teams across the world, any language restriction / policy or constraints have to be considered and applied carefully. For example, if the business / official language of a company is determined as English or Spanish, an employer needs to be clear why and perhaps even for what purpose - formal meetings, documents, minutes - as well as how far such restraints might extend. It is also important to bear in mind that in some jurisdictions obligations are imposed in law to ensure specific communications (such as contractual documentation) are issued in the local language or bilingually and employers must ensure they do not fall foul of these requirements either.