Is language discrimination prohibited under the Equality Act 2010?

If an employee is treated less favourably because of his or her language, can this give rise to a discrimination claim under the Equality Act 2010 (“EqA 2010”)? For example, if an employee is mocked for speaking Welsh, could this give rise to a harassment claim?

Background

Language is not a protected characteristic in the EqA 2010. When the EqA 2010 was introduced, there were calls to ensure that the legislation protected individuals who were discriminated on grounds of language. The Welsh Language Board (“WLB”), for example, called for the protection of Welsh speakers against indirect discrimination, since they perceived  there to be an equality issue within the Welsh language, noting that there was evidence of employers discriminating against Welsh speakers by preventing staff from communicating with each other in Welsh and that there was a general risk that Welsh speakers were discriminated against since certain public services were not provided in Welsh. In addition, the WLB noted that protecting Welsh speakers against indirect discrimination would further the special status that the Welsh language had under the Welsh Language Act.

The Government in the ‘Equality Bill – Government response to the Consultation’, July 2008 (Cm 7454) ultimately ruled out against introducing language as a protected characteristic, as “language is not included as a protected ground in existing European or domestic discrimination law” and there would be significant policy implications “in introducing language generally as an additional protected ground because this would raise questions about the equivalence or otherwise of the many languages in this country”. The Government also pointed to the practical difficulties in introducing language as a protected characteristic, given the large number of different languages spoken in the UK.

In addition, the Government noted that it would be unusual to specifically protect Welsh speakers (but not other language speakers) and to solely protect Welsh speakers in the context of indirect discrimination but not other forms of discrimination.

Race discrimination and language

Although language is not in itself protected under the EqA, it may be possible to bring a race discrimination claim in circumstances where an employee is subjected to less favourable treatment for speaking a language other than English in the workplace. For example, in Dziedziak v Future Electronics Ltd EAT 0270/11, the employee, a Polish national, was told not to speak in her own language at the workplace and was reprimanded for doing so. The EAT held that the employee being told not to speak her own language was inherently discriminatory on the ground of her nationality (and therefore race). 

An employer setting a language requirement may indirectly discriminate against individuals on the grounds of race, unless the requirement is necessary for the satisfactory performance of a job. For example, if a worker only needs a good grasp of English to carry out the job, the requirement for excellent English may not be objectively justified. The EHRC Employment Code (“the EHRC Code”) at paragraph 6.44 provides the following example: “A superstore insists that all its workers have excellent spoken English. This might be a justifiable requirement for those in customer-facing roles. However, for workers based in the stock room, the requirement could be indirectly discriminatory in relation to race or disability as it is less likely to be objectively justified”. 

In some circumstances, an employer may find it more practical to deal with a particular group of workers with limited English language skills using a language other than English. This, however, could give rise to indirect race discrimination. The EHRC Code provides the following example: “A construction company employs a high number of Polish workers on one of its sites. The project manager of the site is also Polish and finds it more practical to speak Polish when giving instructions to those workers. However, the company should not advertise vacancies as being only open to Polish-speaking workers as the requirement is unlikely to be justified and could amount to indirect race discrimination”.

What to take away

Although language is not in itself a protected characteristic, individuals who are treated less favourably due to their language may be able to bring a race discrimination or harassment claim against their employer, as illustrated by the Dziedziak decision and the EHRC Code.

There are circumstances where being treated less favourably due to language may give rise to discrimination claims which do not involve race. For example, as mentioned in paragraph 6.44 of the EHRC Code, certain language requirements may give rise to indirect disability discrimination, if an individual has a disability which creates speech or writing impediments.

Therefore, it does not follow that the Government’s refusal to include language as a protected characteristic means that non-English native speakers are not protected under the EqA 2010.

Farore Law is a leading boutique law firm that has a wealth of experience in advising the victims of race discrimination to seek justice. We are well placed to provide appropriate advice regarding making an allegation through your company’s internal grievance process, seeking a settlement agreement and commencing litigation. Our lawyers frequently advise senior executives and other individuals who have been subjected to race discrimination and recognise the importance of anonymity and reputation management.

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