Auf wiedersehen, pet: Can recruiting on the basis of an accent be discriminatory?

Cheryl Cole has been axed from the US version of the X Factor because of fears the American audience wouldn’t be able to understand her thick Geordie accent. Should an employer be allowed to turn down a job applicant just because of their accent?

A study in 2008 by Peninsula found that 'accent discrimination' is perceived to be widespread. The top five worst accents in the UK as voted for by 2,647 employers, according to the survey were:

1. Birmingham
2. Liverpool
3. Newcastle
4. Glaswegian
5. 'London' Cockney

Almost two-thirds of the 1,638 employees surveyed claimed to have 'hidden' their accent in an interview as they were afraid it would prevent them getting the job.

So is deliberately not hiring a job candidate or firing them because they have a thick accent discrimination?

This is a rather grey area of the law and there is no legislation that says it is discriminatory to treat someone differently because of their accent. However an employee can bring a claim for discrimination on the grounds of race or nationality if they are discriminated against for having a foreign accent, but how far does this cover regional accents?

Meshram v Talk Talk [2007] is one case where an employee was successful in suing his employer when he was moved out of his job because his accent “wasn’t English enough.” He was sent to Talk Talk’s Dehli office for two months but was brought back to England after only three weeks and replaced with someone who could speak English more clearly. He was quoted by The Times as saying:

“I know I speak with an accent but my job … was to give technical advice, not to give expertise on how to communicate. It was an embarrassing and humiliating experience.”

The Employment Tribunal held that he had been racially discriminated against.

However in some cases an employer does have a defense: If they can show that being easily understood is an “occupational requirement” for the job then they are allowed to discriminate against someone who has a thick accent.

Employers should be cautious if they want to rely on this defence as it will only apply where the employee’s job is to communicate with customers or colleagues and clear communication is vital. For example this defence may succeed when the job in question is a teacher, working in customer service, or a receptionist. It would not work where the job is to input data; a job that does not require much communication with others.

In the case mentioned above, if Mr Meshram’s job had been to train Indian call centre workers on how to communicate with English-speaking customers, the employer would have had a reasonable argument that a clear English accent was a requirement for the job.

Hundal v Initial Security Ltd [2006] is one case where this defence succeeded. The employer was able to show that its treatment of Mr Hundal was genuinely due to his difficulty in speaking English clearly as part of his duties required him to communicate on the telephone. The Employment Tribunal found that the employer had not discriminated against him.

So an employee with a foreign accent can claim race discrimination, but what about someone with a Geordie accent being turned down for a job in London because their regional twang is too strong? Discrimination law covers less favourable treatment on the grounds of nationality, but this only includes discrimination on the grounds of being, for example, Irish or Scottish, it does not yet include discrimination because an employee is from Newcastle.

There is no case law on this yet but employers should make sure an employee or potential employee cannot make a claim for discrimination on the grounds of race or sex before turning them down for job because of their regional twang.

This article by Associate Vanessa Potter, first appeared in HR Magazine online on 1 June 2011.