Like many manufacturers, we rely heavily on overseas workers from the EU and beyond. We have never had any problems with their performance or commitment. However, we have recently had complaints from other members of the manufacturing team, who say that the accents of some of our workers are hard to understand, especially over the loud machinery we have on site. Is there any legislation on the level of English that someone has to have, and does it vary by job role?
Whilst under section 77 of the Immigration Act 2016, a public authority must ensure that public sector workers in customer-facing roles speak fluent English (or Welsh, in Wales). A Code of Practice setting out how public authorities can comply with this duty came into force on 22 December 2016. Similar legislation does not exists for non-customer-facing roles in the public sector, or at all in the private sector.
Employers can adopt a policy that their employees should have a certain level of English. In doing so, they should be wary that this could lead to claims of indirect discrimination because those for whom English is not their first language may find it more difficult to comply with the policy. Therefore, employers with a language requirement would need to be able to objectively demonstrate that having a certain level of English is necessary for a genuine business reason. This may differ from role to role depending on the need for the use of the English language in each role. Where there is a health and safety argument to the justification, such as where the role requires the operation of machinery and there is a likelihood of accidents if there are communication barriers, the employer will find is easier to successfully justify such a policy.
In addition, employers should ensure that policies requiring employees to speak English do not extend to social activities such as personal conversations during break times. This is because it is not possible to objectively justify such a policy that encompasses all conversations rather than just those communications that are work-related. The fact that some employees may feel excluded if personal conversations are conducted in a different language is not a sufficient justification.
Finally, the policy should be worded in such a way that it requires a certain level of English, rather than a prohibition on conversing in other languages. In this way, it will apply equally to all employees of all nationalities, rather than just those who speak the prohibited language, and therefore helps to avoid claims of indirect discrimination from those affected employees.
I have recently joined a small manufacturing site, which is run by an old-school, authoritarian operations director. I work in a very hot part of the factory, operating a furnace. The ops director recently walked past the furnace on his daily walk around the plant, and clocked my large sleeve tattoo covering my right arm. He assured me that this ‘isn’t the place’ for such a thing, and asked me to wear longer sleeves to cover it up. I’ve never had complaints from anyone I work with before, and I’m sure what he said can’t be legal – am I right to be concerned, and what can I do about it?
As more and more people are having tattoos, questions about employer policies on them are becoming more common.
There is no law preventing an employer discriminating against an individual on the basis that they have a tattoo, as tattoos and body piercings are explicitly exempt from protection under the Equality Act 2010.
If an employer wishes to impose a ban on visible tattoos, this should be contained in a written policy that is communicated to all staff so that they know what is expected of them. You should review your Staff Handbook and other policy documents to see if such a policy exists at your workplace. Such policies are commonplace within the UK, although with the rise in popularity of tattoos, and following media reports and online petitions, many employers are beginning to reconsider strict prohibitions on visible tattoos.
Given that you work in a very hot part of the factory, operating a furnace, your employer also has to consider health and safety aspects. The Health and Safety Executive recommends that employers consider their employee’s ‘thermal comfort’, which includes environmental factors and personal factors, such as clothing. Requiring you to wear long sleeves in a hot environment purely to cover up a tattoo (ie. not for any health and safety considerations), is likely to adversely affect your thermal comfort, and is something your employer should seriously think about before imposing such a dress code on you.
60 Second Guide
Holiday Pay
Employees have a statutory entitlement to a minimum of 5.6 weeks’ paid holiday per year, including bank holidays (reduced pro-rata for part time employees).
Employees are entitled to be paid at a rate of a week’s pay for each week of leave.
When calculating a week’s pay, employers should include: basic pay; commission payments; incentive bonuses; pay for regular overtime that workers are required to perform, regardless of whether it is guaranteed; performance bonuses; shift allowances and premiums; standby payments and travel and other allowances that are treated as taxable remuneration.
Employers do not have to include benefits in kind; bonuses not linked to the workers’ performance; expenses which the worker would be reimbursed for and one-off bonuses and occasional payments in the calculation of holiday pay.
If an employee does not have normal working hours, a week’s pay is calculated as an average of all remuneration earned in the previous 12 working weeks.
If an employee works regular overtime, then their ‘normal working hours’ should include that regular overtime for the purposes of calculating a week’s pay.
Employees are only entitled to holiday pay if they take holiday. The statutory holiday entitlement cannot be replaced by a payment in lieu, save where the employment relationship is terminated.
The treatment of holiday entitlement and holiday pay beyond the statutory minimum will be governed by the terms of the contract of employment.
