In the recent case of Kelly v Covance Laboratories Ltd, an employer was found not to have discriminated against a Russian employee when it told her not to speak Russian at work.

The claimant, Ms Kelly, was of Russian national origin. Her employer was a company which undertook animal testing and, as such, was sensitive to the possibility of infiltration by animal rights campaigners and resultant security issues. Certain aspects of Ms Kelly’s behaviour caused managers to be suspicious and consequently she was instructed not to speak Russian at work so that managers could understand what she was saying to others. Shortly afterwards she was dismissed on grounds that she had an undisclosed criminal conviction. She brought a claim of direct race discrimination and harassment based on the instruction she had been given.

The Employment Tribunal rejected the claims, finding that not only had two other employees (of Ukrainian origin) been told not to speak Russian but also that the employer would have given a similar instruction to anyone else speaking in a language other than English whose conduct had aroused suspicion. The Employment Appeal Tribunal (EAT) dismissed the claimant’s appeal.

The outcome of this case contrasts with that in the case of Dziedziak v Future Electronics Ltd (2011). There, a finding of race discrimination was upheld by the EAT after a Polish worker was instructed not to communicate “in her own tongue”, in a cosmopolitan office staffed by people who were (generally) of other nationalities, when no one else was given the same instruction. The difference in outcome is due to the fact that, unlike the employer in that case, Ms Kelly’s employer was able to persuade the Tribunal that it had a good reason for insisting that English was spoken and that it would have applied the same approach to anyone who was not speaking English and whose behaviour had aroused suspicion.

The lesson to draw from these cases is that if an employer believes it has good business reasons to justify a language requirement at work, it should make the requirements of the policy clear to all workers, and apply it consistently to employees of all nationalities. Employers also need to think carefully about the scope and extent of any restriction. As ACAS advises: "Employers should be wary of prohibiting or limiting the use of other languages within the workplace unless they can justify this with a genuine business reason. For example, telling two employees that they must speak English to each other outside of business operations when their first language is Russian could be potentially discriminatory. However, an employer might be able to justify this if other employees feel excluded or bullied because they cannot join in ‘in the course of their employment’.” (ACAS guide: Race discrimination: key points for the workplace).