Stopping employees speaking their first language at work could be race discrimination

Stopping employees speaking their first language at work could be race discrimination

But requiring the whole workforce to speak English may be justifiable

In the case of Kelly v Covance Laboratories, the Employment Appeal Tribunal (EAT) had to decide whether an employer telling an employee not to speak her first language at work amounted to direct race discrimination and racial harassment.

Direct race discrimination occurs where an employee is treated less favourably because of his or her race. Racial harassment occurs where an employer engages in conduct related to race that has the purpose or effect of violating an employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

Kelly, a contract analyst, was employed by a laboratory that conducted animal testing and which had been subject to unwanted attention from animal rights activists, including violent assaults on its employees. The laboratory had also unwittingly had activists working undercover in order to obtain information for their campaigns.

The employer became concerned about Kelly’s behaviour near the beginning of her employment when, among other things, she would spend excessive periods having conversations in Russian on her mobile phone in the toilets. Thinking she could be an activist who had infiltrated the company, her manager instructed her to stop speaking Russian so he could understand what she was saying. Kelly objected on the grounds that two Ukrainian colleagues also spoke Russian at work, so her manager instructed their managers to pass on similar instructions not to speak Russian either.

After a series of capability, grievance and disciplinary proceedings, Kelly resigned. She then brought claims of direct race discrimination and racial harassment.

An employment tribunal accepted that an instruction to an employee could amount to unlawful racial discrimination if it could be shown to be intrinsically related to his or her race. In this case, it stemmed from concerns about infiltrators, not Kelly’s race. She appealed.

The EAT dismissed the appeal. The employer had a reasonable explanation for instructing Kelly not to speak Russian. It was not because of her race, but because the company had a justifiable concern that she was an animal rights activist, an issue that was a real risk to the business. Therefore, it was important for managers to understand workplace conversations. The EAT also pointed out that other colleagues were given the same instructions and that hypothetical colleagues would be treated in the same way.

The racial harassment claim was also dismissed as, again, the instruction was not due to her nationality, but because of her suspicious conduct.

This case should not be treated as an authority for employers to prevent employees from speaking their first language at work in all circumstances, but it is a reminder that an employer must have a good reason for imposing a language requirement, and should ensure it adopts a consistent approach on this.

But what is a good reason for imposing a language requirement? Would staff morale and inclusiveness be enough to justify requiring all employees to speak English? How would such a requirement balance with employees’ basic right to speak in their own language? This wider issue was not discussed in the case but it is likely employers would be criticised if they didn’t have a good reason for imposing the ban – it’s doubtful that ‘inclusivity’ would be enough on its own.

This case also highlights the difference between a requirement to speak English and asking employees not to speak another language. The first of these could amount to indirect discrimination, as it is a policy that applies neutrally to all but will disadvantage non-English speakers. However, such a requirement will be allowed, even though it is discriminatory, if it is a proportionate means of achieving a legitimate aim.

Contrast this with a requirement not to speak Russian which, in this case, was considered could be direct race discrimination, for which there is no defence. An employer must prove the reason for the policy is unrelated to race to defeat a claim (which, in this case, it did). Ridiculous and confusing as it may seem, it is better for employers to have a requirement to speak English rather than not to speak another language, as that is likely to be indirect, rather than direct, discrimination for which the defence of “it’s a proportionate means of achieving a legitimate aim” will be available

This post is in: Employment Law Blogs

Employee is guilty of criminal offences outside working hours. Is there anything I can do?

Employee is guilty of criminal offences outside working hours. Is there anything I can do

The recent high profile case of Sunderland footballer Adam Johnson has raised a lot of questions in the HR world.  Most obvious of which is the question of when is it ok to dismiss an employee who is charged with or convicted of an offence.

Johnson was dismissed after he pleaded guilty to two charges of grooming and kissing a girl of 15. After being found guilty of sexual touching the judge warned that a custodial sentence is inevitable.

It has now been revealed that Sunderland Football Club’s chief executive Margaret Byrne was aware of his sexual activity with a 15-year-old fan more than a year ago.

Employees have the right to a private life outside of work, the company cannot easily enforce restrictions on what the employee does during this time. As such it not uncommon for employees to find themselves in trouble but how and when does this impact on their ability to carry on working?

Do employees have to tell their employer of criminal charges/offences?

In many cases the employer will not know that the employee has been charged or even that they’ve been convicted of an offence outside work. There is no obligation for employees to tell their employer unless they are specifically asked, or if the employment contract requires them to disclose such issues.

Under the Rehabilitation of Offenders Act, employees have no obligation to disclose spent convictions unless they work in certain professions, regulated occupations, with children or vulnerable adults. When asked the question, unspent criminal convictions have to be disclosed.

Can you dismiss an employee who has been charged with/convicted of a criminal offence?

Despite what you may think, there is no automatic right to dismiss an employee because they have been charged with or convicted of a criminal offence.

When considering the options employers must take into account the effect of the charge/conviction on the employees continued suitability to do their job. This will also include the impact that the charge/conviction will have on their relationship with their employer, work colleagues and customers, the nature of the offence, the nature of the person’s job and the employee’s seniority or rank.

If there is likely to be no adverse effect on the employees suitability the charge or conviction should have no bearing on any decision.

It may be the employee is unavailable for work because they are in custody, or their bail conditional prevent them from being able to attend work. In that case the employer will need to consider how long this will be the case for and how long the job can be kept open for.

Certain offences will no doubt affect an employee’s suitability for their job, and impact on workplace or business relationships. Charges or convictions of theft would lead the employer to question their ability to trust a retail worker who handles money as part of their role. Other charges such as sexual offences are likely to cause most damage to working relationships and result in fellow workers, customers or supplier being unlikely to want to work with or do business with someone linked to such offences.

The main point for many businesses to consider is the damage that such charges/convictions can cause to their reputation. Sometimes the decision to disassociate itself from an employee’s bad behaviour is about sending the right message out. However, employers should not simply make assertions that their reputation has or could be been damaged. If they want to dismiss an employee on this basis they would need to point to specific examples of losing contracts due to the charge or conviction.

In Sunderland’s case, with the court case receiving such high profile reporting in the media, dismissal is likely to have been in order to protect the clubs standing with fans as a family club, its general worldwide image, and because his teammates might object to playing alongside him.

Before reaching a decision, the employer needs to take into account the sentence awarded. Should this be a prison term, how long it is for and again if it would be viable for the job to remain open for the employee.

If this situation is relevant and you need more help with considering the dismissal of an employee who has been charged or convicted please do not hesitate to contact H.E.L.P.

This post is in: Employment Law Blogs

‘Winter blues’ could be a disability requiring reasonable adjustments

‘Winter blues’ could be a disability requiring reasonable adjustments

Checklist for dealing with seasonal affective disorder

During these dark winter months, some employees can be affected by seasonal affective disorder (SAD). While some dismiss this as simply the ‘winter blues’, for others it can be very debilitating.

SAD is a type of depression whose symptoms tend to be more severe during the winter and improve in the spring. Its exact cause is not fully understood, although the mental impairment is believed to be linked to reduced exposure to sunlight during the darker months. Its symptoms, which can be severe, are similar to other forms of depression: persistent low mood, loss of interest in everyday activities and feeling lethargic. Incidents of misconduct could be connected to the condition, such as employees failing to complete work, lateness, unauthorised absences or perhaps unacceptable behaviour with other colleagues.

The National Institute for Health and Care Excellence recommends that SAD should be treated in the same way as other types of depression; treatment can include talk therapy and antidepressant medication.

The condition can be a disability under UK law if it has a substantial and long-term negative effect on an individual’s ability to carry out normal daily activities, such as washing and getting dressed, performing household tasks or taking part in social activities. ‘Substantial’ means more than minor or trivial, for example, taking much longer than usual to complete a normal daily task. ‘Long-term’ means lasting, or likely to last, for 12 months or more.

It might seem that SAD sufferers would not satisfy this 12 month threshold given that symptoms tend to improve during the lighter months, but there are special rules regarding recurring conditions. If an employee can show (usually through medical evidence) that the substantial adverse effect of the impairment is likely to recur on at least one occasion, then he or she may be held to be disabled, even if there is no immediate prospect of the condition recurring. And the law protects not only those with current disabilities from discrimination, but those who have had disabilities in the past too. So it is possible that where the effects of SAD are substantial, an employee could potentially be held to be disabled, even though the symptoms may only manifest themselves during the winter.

If an employee is disabled, the employer has a duty to make reasonable adjustments. For SAD, this could include moving the employee to sit by a window, providing a special lamp called a light box used to simulate exposure to sunlight and/or assisting with the provision of counselling services.

There are no reported cases of employees bringing claims against employers specifically in relation to SAD but employers should remember that it could potentially be a disability when dealing with employees who may be suffering from the condition. Failing to make reasonable adjustments for disabled employees to help them overcome a substantial disadvantage can give rise to expensive claims, as compensation for discrimination is potentially unlimited and employees can bring this type of claim regardless of their length of service.

There are practical steps that employers can take if they know or suspect an employee is suffering with SAD, which can help to support the employee, minimise the risk of claims, boost staff morale and increase productivity. They can:

  • Look for guidance on SAD and depression generally, and how to deal with disability in the workplace (MIND and Acas are good sources)
  • Discuss with the employee how he or she is feeling and coping
  • Consider seeking the employee’s consent to obtaining a medical report on his or her condition (and prognosis) if it is having a debilitating effect and affecting attendance, work, or workplace relationships
  • Discuss with the employee what reasonable adjustments could be made if a doctor considers the employee’s condition could be a disability, taking into account any recommendations by the doctor

This post is in: Employee Relations Blogs