UK: Avoid Discrimination Based on Language Proficiency

​It is estimated that approximately 7.7 percent of the United Kingdom (U.K.) population speaks a language other than English or Welsh as their main language (U.K. Office for National Statistics 2011). The recent case of Khawaja v Transport for London illustrates why employers must be careful not to discriminate against employees based on their actual, or perceived, language proficiency.

The claimant in this case, a man of South Asian Pakistani ethnicity, was hired by Transport for London as a principal tunnel traffic coordinator. Employees in this role could be nominated to attend "huddles and conference calls" if their supervisors were unable to attend. Both the claimant and another colleague of South Asian Pakistani ethnicity raised concerns that their supervisor, the principal traffic operator, was denying them the opportunity to participate in these calls, which they saw as a training and development opportunity.

During the claimant's performance review meeting, his supervisor confirmed that: "Since English is not your first language, I did not assign you to attend any conference calls or the operations center huddles. I think that you may give them the wrong information due to your lack of command of the English language." The claimant raised concerns about his supervisor's comments and was subsequently invited to attend mediation. The senior colleague assigned to oversee the mediation asked the claimant's supervisor to apologize for her comments, but felt that the dispute had come about as a result of a clash of personalities rather than any discriminatory behavior on the supervisor's part.

Shortly after the meeting, the claimant was assigned to a new supervisor. Although he was no longer expected to work with his former supervisor regularly, the claimant was informed that he had been scheduled to work a shift with her. The claimant refused to work with his former supervisor and raised a formal grievance against her, stating that she had "racially discriminated towards me."

Despite the grievance officer's assessment that the supervisor's comments were "very discriminatory in nature considering [the claimant] has never demonstrated either verbally or in writing any lack of command of the English language," the claimant's grievance was not upheld, as the grievance officers concluded that the matter had been dealt with in line with company policy, and the supervisor had demonstrated no further discriminatory behavior.

The claimant was signed off sick with work-related stress and appealed the outcome of his grievance, which was also not upheld. He was then contacted by his employer who informed him that, as his workplace issues were now resolved, he could face disciplinary action if he did not return to work.

The claimant raised claims of race discrimination, victimization, unauthorized deduction of wages and breach of contract. His claim of race discrimination was upheld by the Tribunal, as the respondent had not demonstrated that the allocation of training opportunities was not less favorable treatment on grounds of the claimant's race.

What Does This Mean for You or Your Business?

Employers must be cautious not to make assumptions about employees' language proficiency based on their race and must avoid treating employees for whom English is an additional language less favorably than their colleagues. Employers who make such assumptions risk discriminating against speakers of other languages on grounds of race, as language is an intrinsic part of a person's nationality.

What Do You Need To Be Doing Now?

Steps employers can take to avoid discriminating based on language proficiency include:

• Educating managers that training and other opportunities should not be withheld from employees as a consequence of their English proficiency.
• Ensuring that employees receive adequate equality and diversity training, which addresses discrimination against speakers of English as an additional language.
• Reviewing policies to ensure that they do not discriminate against speakers of other languages. For example, a ban on speaking languages other than English in the workplace, without a genuine business reason, is likely to be discriminatory.
• Reviewing recruitment procedures to ensure they do not put speakers of other languages at a disadvantage. For example, a written or verbal reasoning test for a manual position, which does not require these skills, is likely to discriminate against speakers of English as an additional language.

Hannah Cheasley is a paralegal with BPE Solicitors LLP in Cheltenham, U.K. © 2019 BPE Solicitors LLP. All rights reserved. Reposted with permission of Lexology.