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

Kelly v Covance Laboratories Ltd [2015] Facts Decision Comment

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.

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