A RECENT DECISION by the Labour Court found that a policy requiring employees to speak English in the workplace was discriminatory on the ground of national origin.
The policy, however, was objectively justifiable. We look at the key considerations for employers on foot of this decision.
Three Polish employees at Aer Lingus challenged the legality of the company’s policy, which required that they speak English while in the workplace. They were, however, allowed to speak in any language during their official breaks.
The employees argued before the Workplace Relations Commission (WRC) that it was either directly or indirectly discriminatory to require them to speak English at work even when they were discussing matters that were not work-related.
They felt they should be able to discuss non-work-related matters in their first language.
Aer Lingus argued that their policy was “reasonable, necessary and proportionate” for the following three reasons:
- Business efficacy;
- Health and safety, as it allowed supervisors to understand the interactions between employees and ensure that hygiene standards were being adhered to;
- Preventing members of the workforce from different cultural backgrounds from feeling excluded or isolated.
Having considered all the written and oral evidence, the adjudication officer at the WRC found that the claimants had not established a clear case of discriminatory treatment in relation to conditions of employment, and so he dismissed the claim.
The claimants appealed the decision to the Labour Court. It found that a clear case of discrimination had been established and that the policy was indirectly discriminatory against workers, like the claimants, whose first language was not English.
As such, the burden of proof shifted to Aer Lingus to justify the terms of the policy on objective grounds.
However the court accepted Aer Lingus’s third objective – that of ensuring that employees were fully integrated into the workforce and to prevent exclusion or isolation of other employees.
While the claimants mentioned they would have been happy to converse in English with their colleagues were they asked to do so, the court did not accept this was an adequate solution.
The court felt this would place an “intolerable burden” on workers as they would have to ask their colleagues not to speak in their first language. The workers may not be comfortable to do so due to fear of an adverse reaction.
The court found that as there were workers from so many different backgrounds in the workplace, it was permissible to adopt a common language to be used in the workplace.
But the court accepted such a policy could not extend to outside of working hours. This would be “oppressive” on employees. On this basis, the court found the policy to be reasonable and proportionate and dismissed the claimants’ appeal.
Multinational and multilingual workplaces are common in Ireland today. Employers should be mindful to take practical steps to ensure employees are fully integrated in the workforce and to prevent a segregated environment.
However, employers need to ensure that these steps relate only to working hours and that employees are free to speak in a language of their choice outside of working hours.
The content of this article is provided for information purposes only and does not constitute legal or other advice.
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