In recent months the Employment Tribunal, and Appeals Tribunal has issued two welcome decisions in respect of employees speaking their first language in the workplace.
In April 2012 the Tribunal heard the case of Griffin v Hyder Brothers Ltd, in which a sales assistant employed at a petrol station, brought a race discrimination claim complaining about a number of incidents.
One of these was that the owner of the franchise and colleagues and other persons connected to the employer often spoke in Punjabi or Urdu at work. He alleged that this occurred in a way that excluded him and made him uncomfortable. The Employment Tribunal dismissed his claim.
They acknowledged that conversations in a language used deliberately to exclude an employee from participating in the conversation, or nevertheless having that effect, could amount to ‘any other detriment' for the purposes of a discrimination claim.
However, whilst the employee here was clear that the conversations in Urdu/Punjabi made him uncomfortable, the Tribunal held that the way the conversations occurred did not amount to a detriment in his case. “They were not designed to exclude him or otherwise upset him and should not, in the circumstances, reasonably have that effect. The fact that the Claimant did not like others having private conversations in their first language, which he did not understand, cannot be described in the view of the Tribunal as a detriment unless there are aggravating factors.”
The Tribunal went on to suggest that “either an intent or inadvertent effect of violating the Claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him” could be an aggravating factor.
A later decision from the Tribunal, whilst in relation to a different type of claim, brings further protection from discrimination for those wishing to speak their first language.
In the case of Dziedziak v Future Electronics Ltd the employee, a Polish national, worked for the employer for approximately three years. She was dismissed by reason of redundancy and brought claims in respect of her dismissal; this claim was dismissed for a number of reasons but, Ms. Dziedziack was successful in bringing a race discrimination claim.
This claim was in respect of an incident in which her line manager reprimanded her for speaking Polish in a work-related conversation at work with a Polish colleague. The Employment Tribunal upheld the employee’s claim of race discrimination on the basis that she had been instructed not to speak "in her own language" whereas no other employees of other nationalities had been subjected to the same restriction.
The case also illustrates the shifting burden of proof in action: the employee had established facts from which the Tribunal could conclude that she had been subjected to discrimination on grounds of her Polish nationality, and this left the employer to provide an adequate non-discriminatory explanation for their instruction not to speak Polish, a challenge they failed to rise to.
On appeal, the EAT upheld the Tribunal’s decision; the use by the employer of the phrase "own language" was intrinsically linked to her nationality.
Interestingly, had all staff been directed to speak in English, her claim would have needed to be brought as an indirect discrimination claim instead of the direct discrimination claim that succeeded. A claim of indirect discrimination would open up the possibility of the employer objectively justifying its instruction.
Hopefully these decisions will serve to encourage employees, subject to discrimination to challenge the actions of their employers.
By Fiona Hamor,
Expert Employment Law Solicitor, Pannone LLP.