Labour & European Law Review Weekly Issue 456 10 February 2016
Although an instruction not to speak a foreign language can amount to direct discrimination and/or harassment, the Employment Appeal Tribunal (EAT) held in Kelly v Covance Laboratories Ltd that the employer would have given the same instruction to any other employee about whom they had concerns or suspicions.
Ms Kelly, who was of Russian origin, started work at Covance, an animal testing lab in February 2014. Her manager, Mr Simpson, soon started to have concerns that she might be an animal rights activist as she frequently disappeared into the bathroom with her mobile phone for excessive periods, speaking only Russian. As a result he instructed her only to speak English at work. She complained that two Ukrainian colleagues were allowed to speak Russian so Mr Simpson asked their manager to give them the same instruction.
However, the problems continued and at her two-month appraisal she was told that she was going to be subject to a formal capability procedure. Ms Kelly then took out a grievance against her manager for race discrimination. The grievance was rejected and she was invited to attend a formal capability process meeting on 16 May. In the interim her employer discovered that she had a conviction for benefit fraud and prior to a disciplinary hearing on 21 May, Ms Kelly resigned. She pursued a number of claims against her employer, including one for direct race discrimination and/or harassment related to her race.
The tribunal dismissed her complaint that the instruction not to speak Russian in the workplace constituted race discrimination. Holding that the correct comparator was another employee speaking a language other than English in circumstances that gave their manager reasonable cause for concern, the tribunal found that Mr Simpson would have given the same instruction to any other employee about whom he had similar concerns. The fact that his instruction to the manager of her two Ukrainian colleagues had not been carried out was neither here nor there.
In terms of the allegation that it constituted unlawful harassment, the tribunal was again not satisfied that it was because she was Russian. Although it was unwanted conduct, it held that Mr Simpson gave the instruction because of the suspicions that he had about her.
Ms Kelly appealed to the EAT.
In relation to the direct discrimination case, the EAT held that the tribunal had correctly considered the actual comparators relied on by Ms Kelly but had accepted Mr Simpson’s evidence, finding as a fact that he had given the same instruction that the comparators should not speak Russian in the workplace. The tribunal had correctly concluded that the relevant comparator should be another employee speaking a language other than English in circumstances that gave Mr Simpson reasonable cause for concern. Having weighed the evidence before it, the tribunal reasonably concluded that any such employee, in like circumstances, would have been treated in the same way.
As for the harassment claim, the tribunal had again accepted the employer’s explanation that it was not Ms Kelly’s race or national origin that caused Mr Simpson to give the instruction but her behaviour given the context in which the company operated and the risks it faced.
So although an instruction not to speak a foreign language can amount to direct discrimination and/or harassment, the EAT was satisfied that the tribunal had directed itself properly in this case and it dismissed the appeal.
The key factor in this decision was that the employer could show that they had a good reason for the requirement to speak English only, which was not connected to the protected characteristic.