“Native English” requirement in Job Advertisements

7 September 2021

Our Managing Partner, Gareth Kervin, was recently quoted in an article on Vice Media regarding the lawfulness of asking for “native English” in job adverts. Gareth said that in instances where “native English” is required, we can talk about “indirect discrimination”.

“Indirect discrimination is when an employer sets criteria or a requirement,” says Kervin, meaning that by specifying that they want a native English speaker, “the indirect effect is you are discriminating against people not born in the UK”.

Indirect discrimination also means employers can defend themselves by claiming language proficiency is a genuine occupational requirement, but Kervin agrees that there are better ways to establish language competency than using the term native. “You’ve got many native speakers whose level of English would be extremely poor,” he says.

Even though the law is there to protect applicants, very few claims are brought forward, which enables companies to continue to discriminate. Several difficulties, including evidence and costs, arise when trying to file a discrimination claim. These claims can also cause unfair “reputational damage”.

Kervin explains that the decisions made by the tribunal get recorded online: “If somebody Googles your name, the top entry will show them versus this company. Many HR departments google people during the recruiting process, and if you’ve got your name on a case, which says you sued an employer, that’s going to make it very difficult to get another job.”

If you would like to read the article, please follow this link.