In the case of Kelly v Covance Laboratories Ltd, the Employment Appeal Tribunal (EAT) was asked to consider whether an employer’s instructions to an employee not to speak Russian in the workplace amounted to direct race discrimination or race harassment.
By way of background, Mrs Kelly, a Russian national, was employed by Covance Laboratories Ltd as a contract analyst. Covance perform animal testing and had previously received unwanted attention from animal rights activists, including violent assaults on some employees as well as activists working undercover at the company.
Covance began to have concerns about Mrs Kelly’s conduct from early in her employment. Mrs Kelly displayed unusual behaviour and in particular, was often seen using her mobile phone in work and having long conversations in Russian in the office toilets. Mr Simpson, her line manager, soon started to wonder whether she was an animal rights activist who had infiltrated the company. Mr Simpson instructed Mrs Kelly not to speak Russian at work so her conversations could be understood by the English-speaking managers. Mrs Kelly objected and argued that two Ukrainian employees also spoke Russian at work. In response Mr Simpson asked their managers to pass on similar instructions to those employees.
Covance’s concerns regarding Mrs Kelly continued and at her two-month probationary review she was advised that the company intended to start a formal capability procedure against her. Mrs Kelly then decided to raise a grievance against Mr Simpson and made a race discrimination complaint. Following an investigation, Covance rejected the grievance and invited her to attend a formal capability meeting. Covance then discovered that Mrs Kelly had previously been convicted of benefit fraud and given a suspended prison sentence. Covance invited her to a disciplinary hearing to consider the allegation that she had failed to disclose. Mrs Kelly then resigned the day before the disciplinary hearing. Mrs Kelly then brought numerous claims to an employment tribunal. The claims were all dismissed but Mrs Kelly appealed to the EAT in respect of her claims for direct race discrimination on the grounds of nationality or national origin and for race harassment.
The EAT subsequently agreed with the employment tribunal’s decision and dismissed Mrs Kelly’s appeal.
The EAT concluded that whilst an instruction linked to an employee’s race or national origins could amount to direct discrimination, in this case, Covance had a reasonable explanation for its actions that were not related to Mrs Kelly’s race or nationality. The instruction was due to suspicions over Mrs Kelly’s behaviour, not because she was Russian. Covance’s actions in this regard were reasonable bearing in mind its business activities in carrying out animal testing and the security requirements arising from this. The EAT also noted that Mr Simpson had asked the managers of Mrs Kelly’s named comparators to give them the same instruction about not speaking Russian at work and would have given the same instruction to a hypothetical comparator. The EAT decided therefore that the tribunal’s conclusion that the reason for the instruction was not Mrs Kelly’s race or nationality was sound. The EAT also dismissed Mrs Kelly’s harassment claim.
This case demonstrates that an employer, who has legitimate business reasons to justify a language requirement at work, should ensure that its policy is clear and applied consistently to all employees regardless of nationality. If an employer does decide to implement such a policy, it would seem appropriate that the requirement is to speak in a specified language (i.e. English), rather than require employees not to speak particular languages as the former could amount to a provision, criterion or practice, which is capable of justification if the employer can demonstrate it is a proportionate means of achieving a legitimate aim. However, the latter could amount to direct discrimination, for which an employer would be unable to provide a justification.
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