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January 30, 2021 on chapter Discrimination

What can we do if employees can’t understand instructions due to poor English skills?

It has come to our attention that some longstanding employees don’t have sufficient English reading skills to read and comprehend our procedures and task instructions. It appears they had people interpreting for them who have since left the business. Are we able to insist that these employees learn English outside of work? Is termination of employment an option?

You should be cautious about taking any action that may amount to unfair treatment, particularly where it could be viewed as directly or indirectly due or related to protected attributes, such as race.

Employers are encouraged to adapt workplaces to accommodate people who speak English as a second language by using picture signage instead of the written word, or translation of key policies and procedures.

However, generally speaking, action may be excluded from unlawful discrimination where it based upon an employee’s capacity to carry out the inherent requirements of their position.

To ensure that any conduct on your behalf is not unlawfully discriminative, you must be sure that the person cannot perform the essential tasks of the job and base this assessment on actual performance at work, not what you suspect or believe. You must consider whether the employees’ inability to perform their tasks is because of their insufficient English reading and comprehension skills, or whether it is because they simply don’t have the training, qualifications or experience required for the job.

As it appears that the employees have been able to adequately perform their duties without strong English reading skills in the past, and may continue to do so, there are viable alternatives to employment termination, such as providing the necessary training instructions verbally or with the assistance of a qualified translator.

Should you believe that significant safety risks are present, immediate action should be taken to remove any risks to employees’ health or safety, including the suspension of work activities. You should seek legal advice if this is the case.

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