Employment Law Advocates

The Mail on Sunday is running a front page story about a meat supplier which advertised for workers with the requirement that they be fluent in Polish. Like any language requirement case, the first thing to say is that this cannot be direct discrimination against English people because there are a small number of English people who are fluent in Polish and some Polish nationals who are not. However, it is prima facie an instance of indirect discrimination and so the question arises as to whether it can be justified.

It is necessary to be even-handed here and say that the test of justification is the same whether or not the requirement is to speak English or some other language. Therefore, in a client-facing role, dealing with Polish-speaking clients, justification would usually be made out. However, the argument used here was that Polish was required because health and safety briefings were given in Polish. This is patently absurd because, although the aim of complying with health and safety law is a legitimate one, it cannot be a proportionate means of doing so where so many potential applicants are likely to be affected and it would be easy to have briefings in English too. The company was clearly right to withdraw the advert.

This situation echoes the strikes at the Lindsey Oil Refinery a year ago and the infamous decisions of the European Court of Justice in the Viking and Laval cases. By contrast I believe that, while the right of companies and individuals to travel in the European Union is an important one, it cannot and should not be used to excuse discrimination. This is not just discrimination against English workers because the only logical explanation for preferring the Polish workers is that they are willing to accept worse terms and conditions than their English counterparts. This is double discrimination and should not be tolerated.