The EAT has upheld a decision of the Employment Tribunal in Kelly -v- Covance Laboratories Limited 2015, holding that in the particular circumstances of the case, an instruction given to the claimant not to speak in Russian was not race discrimination.

Ms Kelly worked in a laboratory with a history of protests from animal rights infiltrators. Ms Kelly made a number of lengthy calls from her mobile phone while at work, and spoke in Russian. This caused her manager to become suspicious that she was in fact an animal rights infiltrator, and he instructed her to only speak English (rather than Russian) while at work, so that managers could understand her conversations.

While it is possible for such an instruction to amount to an act of direct race discrimination or harassment if the instruction is linked to an employee’s race or national origins, the Tribunal was entitled to conclude that the same instruction had been given to actual comparators, and would also have been given to other employees speaking a language other than English in circumstances that gave the employer cause for concern. The harassment claim also failed, because the reason for the instruction was not Ms Kelly’s nationality, but because of her manager’s suspicions about her behaviour.