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Case update (2): Discrimination – language barriers at work

blog-mouthSummary: Does an instruction by an employer to an employee not to speak their native language at work amount to race discrimination and harassment?

Not if there is a reasonable explanation for the instruction, says the EAT in Kelly v Covance Laboratories available here.

Facts: Mrs Kelly, the employee, started contract work in an animal testing laboratory with a six-month probationary period.  Early on, there were concerns about her conduct and performance.  The employer’s involvement in animal testing had previously made it the subject of attention from animal rights activists, including violent assaults on some of its employees.  During the early weeks of her employment Mrs Kelly’s behaviour – including going to the bathroom for long periods with her phone and speaking in Russian on the phone – was sufficiently unusual for a new employee in her position for her line manager to worry that she might be an animal rights infiltrator. There had been previous such incidents.

As a result, the line manager instructed her not to speak in Russian at work.  He considered it important that any workplace conversations should be capable of being understood by English speaking managers.  When Mrs Kelly objected that two Ukrainian colleagues also spoke Russian at work, he passed on similar instructions to their line managers.

Other disciplinary issues were raised with Mrs Kelly, but she resigned and brought various Tribunal claims, including race discrimination.  Mrs Kelly’s race discrimination claim was rejected by the Tribunal and her subsequent appeal to the EAT.

The EAT held that in this case, the employer had a reasonable explanation for its actions that were not related to Mrs Kelly’s race or nationality. The reason for the instruction was not because Mrs Kelly was Russian, but because of the suspicions the employer reasonably had about her behaviour in the context in which it operated.

Taken in the context of the employer’s activities in carrying out animal testing and the security requirements arising from this, it considered it important that conversations in the workplace were capable of being understood by its English-speaking managers.

The EAT further took into account that the employer had asked the managers of Mrs Kelly’s named comparators to give them the same instruction about not speaking Russian at work. Further, it found 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.

With regard to the harassment claim, the EAT held that Mrs Kelly’s line manager’s behaviour was not related to Mrs Kelly’s nationality. Rather it was because of suspicions relating to Mrs Kelly’s conduct. Further, the EAT agreed with the Tribunal’s finding that the instruction 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.

Implications: This case helpfully highlights that employers are able to instruct employees not to speak in their home language in the workplace without falling foul of race discrimination law, so long as there is a good explanation other than race.

In this case there were good reasons for the instruction, which would have been given to any employee speaking a language other than English in circumstances that gave the employer cause for concern.

In practice, if an employer decides that it has good business reasons to justify a language requirement at work, it should ensure that the requirements of the policy are clear, and that it is applied in a consistent way to employees of all nationalities.

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