Sports direct issued a note titled “Store Language Policy” which included the line, “We would like to take this opportunity to remind staff that they must speak in English at all times when they are at work, in order that they can be understood by all members of staff; this includes any personal conversations that may be taking place during work time.” The note also attempted to justify this policy, saying that misunderstandings create health and safety risks. (A copy of the note is included in the linked article.)

I’m not the first employment lawyer to point out that this could lead to claims of indirect discrimination against the company. Indirect discrimination is when a policy or practice is applied equally to all, but has an adverse effect on employees with a ‘protected characteristic’. Race is one such characteristic, and it is stated to include ethnicity, nationality and national origins. Language is therefore intrinsic to race, and so Sport Direct’s policy is likely to amount to indirect race discrimination.

“But health and safety!” I hear someone say. Surely, we can’t allow other languages if they create health and safety risks?

A distinction is made here between direct and indirect discrimination. Direct discrimination is when someone is treated badly because of their race etc; for indirect discrimination, a policy is applied across the board and the discriminator may not even have thought about its discriminatory effects. Indirect discrimination can, potentially, be justified if there is a legitimate reason for the policy and the policy is no wider than necessary to achieve the stated reason. Health and safety is a legitimate reason.

Acas addressed language restrictions in its 2016 guide, “Race discrimination: key points for the workplace”: “Employers should be wary of prohibiting or limiting the use of other languages within the workplace unless they can justify this with a genuine business reason.”

But what are the risks posed by foreign languages in the workplace? One can imagine scenarios where the use of foreign languages could be problematic. For example, safety instructions for a piece of office equipment should be in the language that is understood by most people who might use the equipment. But in most instances, talking to your colleague in a foreign language gives rise to no risk. As a lawyer quoted in the article says, banning foreign languages could sometimes even increase risks – for example if an employee does not understand a health and safety instruction, so a compatriot provides a translation.

It seems that the company has taken these warnings on board. As explained in this BBC article, Sports Direct has now promised to clarify the note, which it claims was a misunderstanding. It is perhaps interesting that the only misunderstanding was caused by a note written in English in very clear words.

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