The Employment Appeal Tribunal recently upheld an employment tribunal decision that an instruction to a Russian employee not to speak Russian in the work place was not direct race discrimination, as the employer had a reasonable explanation for doing so which was unrelated to the employee’s nationality or national origin.

Facts

Mrs Kelly, who is Russian, was employed by Covance Laboratories Ltd as a contract analyst. Covance’s work involves animal testing and the company had previously experienced problems with animal rights activists, including violent assaults on some of its employees by undercover activists looking to obtain information surrounding the company’s work.

Covance had their concerns about Mrs Kelly from the outset of her employment as a result of her somewhat erratic behaviour. Mrs Kelly would frequently use her mobile phone in the work place and have long conversations in her native language in the office toilets. Concerns arose as to whether Mrs Kelly was an undercover animal rights activist. As a result of what was considered suspicious behaviour, Mrs Kelly was instructed by her line manager not to speak Russian in the work place so that any conversations could be understood by English-speaking managers. Mrs Kelly objected, pointing out that two Ukrainian employees also spoke Russian at work. The company responded by instructing the two Ukrainian employees that they too must not speak Russian in the workplace.  

Mrs Kelly was informed at her two month probationary review that Covance intended to carry out a formal capability review. Mrs Kelly duly raised a grievance against her line manager complaining of race discrimination. Following an investigation into her complaint, the employer rejected the grievance and invited Mrs Kelly to a formal capability meeting.

Meanwhile, Covance discovered that Mrs Kelly had been convicted of benefit fraud and had been given a suspended sentence, details of which she had failed to disclose to her employer. As such, Mrs Kelly was invited to a disciplinary hearing. Mrs Kelly resigned the day before the hearing was due to take place and brought various claims in the employment tribunal, all of which were dismissed. Mrs Kelly appealed the decision in relation to her claims for direct race discrimination on the grounds of nationality and race harassment.

Decision

The EAT dismissed the appeal.

The employment tribunal was entitled to find that the instruction not to speak Russian amounted to unlawful direct discrimination and harassment as established in Dziedziak v Future Electronics Ltd. However, it was found that Covance had a reasonable explanation for its actions which did not relate to Mrs Kelly’s nationality, but on the grounds of Mrs Kelly’s suspicious behaviour in the context of the business, not because she was Russian.

An important factor considered further by the EAT was that Covance had instructed managers of Mrs Kelly’s named comparators (the two Ukrainian employees) to provide them with the same order in respect of refraining from speaking Russian at work. The EAT found that Covance would have treated a hypothetical comparator (another employee speaking a language other than English in similar circumstances) in exactly the same way as Mrs Kelly.

In respect of Mrs Kelly’s harassment claim, the EAT found that whilst the instruction given by Covance amounted to unwanted conduct, it was based on Mrs Kelly’s line managers suspicions about her unusual behaviour and conduct, not her nationality. Further the EAT found that the instruction did not result in Mrs Kelly’s work environment becoming hostile, degrading, or intimidating.  

Comments

Many employers will have employees whose first language is not English, and those employees may wish to converse with other employees of the same nationality in their native language or speak to family and friends on the telephone during the course of their working day. This can lead to complaints from colleagues who feel excluded and to concerns on the part of the employer about the subject matter of such conversations.  However, if an employer decides to require employees to speak English at work,  that decision must be taken for clear and justifiable  business reasons, and employers must ensure that any such policy is clear and is applied consistently to all employees, regardless of nationality.

Kelly v Covance Laboratories Ltd UKEAT/0186/15