Childcare Counsel - English in the staffroom, resigning while under investigation

A member of staff recently resigned in circumstances where her conduct was being investigated. The nursery has now been approached by another nursery to provide a reference. Is there any legal obligation to do so?

It is a common misconception that there is a legal obligation to provide a reference for an ex-employee. There is no such obligation, but there is an expectation to do so.

Refusing to provide a reference could give rise to a claim. It could be claimed that the refusal is due to discrimination or is an act of victimisation. Therefore it is important to have a legitimate reason that can be supported by evidence if required. A legitimate reason could be the circumstances in which the individual left the nursery, but a consistent approach would need to be demonstrated to avoid a discrimination claim.

Where a reference is provided, there is an obligation towards the ex-employee to ensure that it is true, accurate and fair and not misleading. For this reason, and to avoid potential disputes over the content of references, nurseries often limit the content to the dates of employment and job title.

A member of the team has raised concerns about staff not speaking English to each other in the staffroom, which has made her feel excluded and uncomfortable. What are the discrimination risks of insisting that staff speak English at work?

In a recent case in the Employment Appeal Tribunal, an employer who told a Russian employee not to speak Russian at work was found to have acted lawfully. However, this ruling should not be taken to justify a language requirement.

Employers should be wary of prohibiting or limiting the use of other languages within the workplace unless there exists a genuine business reason for such requirement, as it could potentially lead to claims of race discrimination or harassment. If a language requirement is imposed, the requirements should be made clear to all employees, and applied consistently to all nationalities.

A requirement to speak English in the course of employment will be more easily justified than a requirement to speak English during breaks and at work-related events. However, where there is evidence that other employees feel excluded or bullied by individuals not speaking English at such times and that this is seriously impacting morale and performance, the necessary justification may exist.

All questions to hannah.crown@markallengroup.com