Case law: Employers should beware treating employees less favourably if English is their second language
Employers should avoid treating employees for whom English is a second language less favourably on the basis they inevitably have a lesser command of English than those for whom it is their first language; otherwise they risk a race discrimination claim as a recent ruling makes clear.
This update was published in Legal Alert - August 2019
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An employee of South Asian Pakistani ethnicity claimed his supervisor was not selecting him to stand in for her at ‘huddles and conference calls’ – important occasions at the company - when she was unable to take part, and this was damaging his career prospects. A fellow employee of the same ethnicity made the same claim.
The supervisor argued that this was because English was their second language, which meant they might give wrong information during these meetings and calls due to their lack of command of the English language. The employees objected, but agreed to mediation.
The mediator did not think the supervisor’s behaviour had been discriminatory (although they asked her to apologise) but thought it had been the result of personality clashes.
The employee was given a new supervisor but was later asked to work a shift with the old supervisor. He refused and raised a formal grievance alleging racial discrimination.
The officer presiding over the grievance found that the employee had ‘never demonstrated … a lack of command of the English language’ and that the supervisor’s comments were ‘very discriminatory in nature’. However, the grievance was not upheld because the matter had been dealt with in accordance with company policy and the supervisor had not shown further discriminatory behaviour.
The employee appealed, going off sick with work-related stress in the meantime. When his appeal was rejected his employer told him he must return to work or he would be disciplined. Amongst other claims, he claimed race discrimination in the Employment Tribunal (ET) on the basis that language is an intrinsic part of a person’s nationality and keeping him away from the huddles and conference calls because English was not his first language meant he had been treated less favourably than other employees whose first language was English because of his nationality.
The onus was on the employer to show that the less favourable treatment of the employee had not been because of his race. The ET found it had failed to do so and agreed there had been race discrimination.
- Employers should avoid treating employees for whom English is a second language less favourably – for example, by automatically denying them training and development opportunities, banning languages other than English at work or introducing language skill criteria for jobs that do not require them - on the basis they must have a lesser command of English than those for whom it is their first language, or risk a race discrimination claim.
Case ref: Khawaja v Transport for London 2301184/2018 and 2303527/2018
Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.
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