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The Employment Appeal Tribunal (EAT) has found that an employer did not discriminate against an employee on grounds of race when instructing an employee not to speak in Russian while at work.

Kelly v Covance Laboratories Limited

Mrs Kelly, a Russian national, was employed by Covance Laboratories (the Respondent) as a contract analyst from 3 February 2014. Her employment with the Respondent was subject to an initial six-month probationary period.

The Respondent Company undertakes work that involves the use of animals for testing products. As a result, it is the focus of animal rights campaigns and there have been incidents in which employees have been violently assaulted. Early in Mrs Kelly’s employment, concerns arose relating to her behaviour and performance. Her behaviour was so unusual for a new employee embarking on a new career that her manager began to wonder whether Mrs Kelly was in fact an animal rights activist who had infiltrated the Company.

Mrs Kelly’s unusual behaviour continued, including excessive use of her mobile phone at work, disappearing to the bathroom for lengthy periods of time and speaking in Russian so that none of her English speaking managers could understand her. As a consequence of his suspicions, on 5 March 2014 Mrs Kelly’s manager instructed her not to speak in Russian at work. He also passed on similar instructions to the managers of Mrs Kelly’s Ukrainian colleagues.

Mrs Kelly’s conduct did not improve and at her two-month probationary review, she was told that she would be moved into a formal capability process. It was at this point that Mrs Kelly raised a grievance about her manager, complaining of race discrimination. The grievance was investigated but rejected. Mrs Kelly was invited to attend a capability meeting on 16 May 2014 but handed in her resignation on 20 May 2014 and subsequently brought Employment Tribunal (ET) proceedings.

The ET was unable to identify any facts that could lead it to conclude that the matters complained of were anything to do with Mrs Kelly’s national origin or race and rejected Mrs Kelly’s complaint. The ET found that any other employee of the Respondent would have been given the same instruction where the same concerns arose and the line managers of Mrs Kelly’s Ukrainian colleagues had been instructed to impose the same rules on them.

The ET concluded that Mrs Kelly’s manager had not given her the instruction because she was a Russian national but because of the suspicions he had about her and therefore, the conduct did not relate to national origins.

Mrs Kelly appealed.

Decision

In dismissing the appeal, the EAT was satisfied that the Respondent had a reasonable explanation for its instructions to Mrs Kelly and that the instruction was not in any way related to Mrs Kelly’s Russian nationality.

The ET had been entitled to conclude that the Respondent had reasonable grounds for concern in relation to Mrs Kelly’s behaviour and that any comparator (another foreign national asked not to speak in their language) would have been treated the same way bearing in mind the sensitive environment in which the Respondent operated in.  The EAT also considered that the instruction was given because of Mrs Kelly’s suspicious behaviour.

Comment

It is common for employers to have employees who do not speak English as their first language and wish to speak in their native tongue to colleagues or relatives during working hours.

Employers should bear in mind that there is no justification defence available in a direct race discrimination claim, even if it has good reasons for its actions. An employer will only be able to defeat a direct discrimination claim if it can show that its reasons for the treatment in question is unrelated to the employee’s nationality or national origins. Therefore, if an employer considers it necessary to implement a policy regarding spoken language at work, it would be preferable for it to be a requirement to speak English (or another specified language) rather than a requirement to not speak a particular language or languages.  Although this case highlights that it is possible to prohibit the use of other languages in the workplace, employers should exercise caution when doing so as they could face direct and indirect discrimination and harassment claims. Employers should take legal advice before implementing any such policy.

If you have any queries relating to discrimination in the workplace or if you have any other employment related queries please do not hesitate to contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.

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