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Articles Employment 18th Jan 2016

Employment Review: January 2016 – Instruction not to speak Russian at work not direct discrimination or race harassment

Kelly v Covance Laboratories Ltd [2015]

Facts

Mrs Kelly was employed in a role which involved carrying out animal testing at Covance Laboratories.  The company had received unwelcome attention from animal rights activists (including violent assaults on some of its employees) and due to Mrs Kelly’s conduct during her probationary period there were genuine concerns that she was an activist who had infiltrated the company in order to obtain information to further a campaign. Specifically, Mrs Kelly frequently used her mobile phone at work and had long conversations in Russian on her mobile in the office toilets.

Mrs Kelly was instructed not to speak Russian at work so that her conversations could be understood by her English-speaking managers.  Mrs Kelly resigned during her probationary period and brought various claims in the employment tribunal which ,were all dismissed.  Mrs Kelly appealed the decision in respect of her claims for direct race discrimination on the grounds of nationality or national origin and race harassment.

Decision

The EAT dismissed the appeal.  It was reiterated that an instruction linked to an employee’s race or national origin could amount to unlawful direct discrimination and harassment however in this case, the employer had a reasonable explanation for its actions, which was not related to Mrs Kelly’s race or nationality i.e. the suspicions around her behaviour and the importance that conversations in the workplace were capable of being understood by managers.

The employer was able to demonstrate that two Ukrainian colleagues were also asked to refrain from speaking Russian at work and that the employer would have given the same instruction to a hypothetical comparator, being another employee speaking a language other than English in circumstances that gave it cause for concern.

The harassment claim failed on the basis that although the instruction constituted ‘unwanted conduct’ it was not related to Mrs Kelly’s nationality and did not have the effect or purpose of violating Mrs Kelly’s dignity, or creating an intimidating, hostile, degrading or offensive environment for her at work.

Comment

If an employer decides that there is a business need to justify a language requirement at work it should ensure that there is a clear policy which is applied consistently, transparently and fairly.

There is a difference between a language requirement (e.g. to speak English) and a language restriction (e.g. to refrain from speaking another language).  A language requirement is more likely to be classified as a provision, criterion or practice (a “PCP”) from which an indirect race discrimination claim could arise.

A PCP can be justified if it is ‘a proportionate means of achieving a legitimate aim’.

A language restriction may amount to less favourable treatment and therefore a direct race discrimination claim. There is no justification defence available in a direct race claim – the employer has to show (as it did in this case) that its reasons were unrelated to the employee’s nationality or national origins – which, arguably, is a more difficult defence to run.


The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.

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