The Employment Appeal Tribunal (EAT) recently gave judgment in the case of Kelly –v- Covance Laboratories 2015 which examined whether an employer could be liable for discrimination by forbidding its employees to speak Russian at work.

Background

K, a Russian national, worked as a contract analyst for Covance which carried out animal testing. Due to the nature of its activities Covance had received unwelcome attention in the past from animal rights activists including assaults on staff and activists infiltrating the company by taking employment there. From an early stage of her employment Covance had concerns about K’s performance and were suspicions regarding her behaviour which included holding lengthy conversations in Russian on her mobile phone in the staff toilets. Given the previous problems Covance had had regarding bogus employees and concerns about K’s behaviour, Mr Simpson, K’s manager, instructed her to avoid speaking Russian at work and to speak English so the company’s managers could understand her. K pointed out that 2 Ukrainian colleagues spoke Russian at work and S therefore sent instructions to the managers of those employees to ensure they also refrained from speaking Russian at work.

When it came to light that K had not disclosed a criminal conviction for benefit fraud Covance invited K to a disciplinary hearing. Before it took place K resigned. She lodged an employment tribunal claim alleging that S’s instruction to her to not speak Russian at work amounted to direct race discrimination and racial harassment.

An employment tribunal dismissed K’s claims and she appealed to the EAT. The EAT noted that in a previous case, Jurga –v- Lavendale Montessori 2012, the employer had been held liable for race discrimination in a similar situation. In that case J was a Polish national. A colleague complained about her speaking Polish at work. J lodged a grievance with her employer about the colleague which was rejected. An employment tribunal found that the colleague’s complaint and the manner in which the employer investigated and responded to J’s grievance amounted to racial harassment as they created a humiliating or hostile environment for J at work.

Appeal decision

The EAT in Kelly distinguished the case before it from the previous decision in Jurga. In Kelly, the employer had a particular reason for instructing K not to speak Russian and to speak English at work related to the security concerns it had because of the activities of animal rights activists in the past. The EAT found that the employer’s instruction was not related to K’s nationality or national origin. Accordingly, the claims for direct race discrimination and racial harassment had been correctly rejected by the tribunal below.

What does this mean for you?

Whilst the decision here was in the employer’s favour, employers should take care in any similar situation. The facts of the case in Kelly were unusual involving suspicions based on valid security concerns in the employer’s mind. Accordingly, the tribunal and the EAT were able to find that the instruction not to speak a foreign language was not related to the employee’s nationality. In many cases an employer may not be able to show that such an instruction to employees is lawful. For employers who feel prohibiting staff from speaking a foreign language at work is necessary we recommend that advice is sought and a written policy is produced setting out the justification for the rule and making staff aware of the policy. It goes without saying that employers in this position will need to ensure that such a policy is followed in practice and applied consistently.

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