Employment Tribunals: Challenging discrimination at work

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. Fiona Hamor, a Partner in the Employment team at Pannone Solicitors who advises on all aspects of employment law, including unfair dismissals, discrimination, redundancies and trade union issues writes about the importance of these decisions.

In April the Employment 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.

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 and dismissed his claim.

The Employment Tribunal stated that:

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 however in this case, speaking in another language was not used in this manner.

In the case of Dziedziak v Future Electronics Ltd heard earlier this mont, the employee, a Polish national, worked for the employer for approximately three years. Ms. Dziedziack was successful in bringing a race discrimination claim 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 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 Employment Appeals Tribunal upheld the Tribunal’s decision; the use by the employer of the phrase "own language" was intrinsically linked to her nationality.

These recent decisions from the Employment Tribunal offer hope for freedom from discrimination in the workplace and hopefully will serve to encourage employees, subject to discrimination to challenge the actions of their employers.

Fiona Hamor, Partner, Pannone LLP