The Employment Appeal Tribunal (EAT) has recently considered a case in which a Russian national was told not to speak Russian at work. In Kelly v Covance Laboratories Ltd UKEAT/0186/15 the employee claimed that this amounted to race discrimination and harassment. The question for the employment tribunal (ET) and subsequently the EAT was whether the employee had been subject to direct race discrimination and/or harassment relating to her race.

Facts

Covance Laboratories Ltd (the Employer) operated a laboratory in Yorkshire and employed Ms Kelly as an analyst from 2014. Concerns about Ms Kelly's conduct and performance arose very early in her employment. Part of the work undertaken at the laboratory involved the use of animals for testing products. As a result of this, it had been the subject of attention from animal rights groups, which had included violent assaults on some of its employees. Given that Ms Kelly's behaviour during the early weeks of her employment was unusual for a new employee in her position, her line manager began to wonder whether Ms Kelly was who she said she was. The line manager was aware of previous incidents where other laboratories had been infiltrated by animal rights activists posing as employees. In light of this, the line manager had concerns that Ms Kelly might have been an animal rights activist. In particular the line manager was concerned that Ms Kelly often disappeared into the lavatories with her mobile phone for excessive periods and spoke on her phone in Russian.

The line manager spoke to Ms Kelly and asked her not to speak in Russian at work. Ms Kelly objected, on the basis that there were two employees from the Ukraine who also spoke Russian at work and so the line manager passed on similar instructions to other line managers. The line manager also raised concerns about Ms Kelly's performance and conduct issues. Ms Kelly responded to these points by email and appeared accepting of the feedback, as her response was positive.

Ms Kelly was moved into a formal capability process and raised a grievance about her line manager, which included complaints of race discrimination. The grievance was investigated but rejected.

In the meantime, Ms Kelly had contacted Acas, who had contacted the Employer. The contact from Acas prompted the Employer to research Ms Kelly and it transpired that, prior to her employment, she had been convicted and given a suspended prison sentence, which she had failed to reveal to the Employer. This was raised with Ms Kelly and she was told there would be a disciplinary hearing. Prior to either the capability process completing or the disciplinary hearing commencing, Ms Kelly resigned and brought ET proceedings.

Employment tribunal decision

The ET rejected Ms Kelly's complaint that the instruction not to speak Russian in the workplace was direct discrimination since there was no reason to believe that any other employee of different national origin would have been treated any differently. Ms Kelly relied on the fact that her two Ukrainian colleagues had not been subject to the same instruction but the ET found that Ms Kelly's line manager had told the other line managers to impose a similar prohibition on them, albeit that this instruction had not been carried out. The ET went on to consider a hypothetical comparator, which it considered was another employee speaking a language other than English in circumstances that gave the line manager reasonable cause for concern. The ET found that it was the line manager's concerns that resulted in the instruction to Ms Kelly and that the line manager would have given the same instructions to any other employee where the same concerns had arisen.

The ET accepted that the instruction not to speak Russian could be unwanted conduct but it was not satisfied that this was related to Ms Kelly's nationality. The ET concluded that the correct test was to ask why a person had acted as they did and found that the line manager did not give the instruction because the employee was a Russian national but because of suspicions she had about her. In any event the ET was not satisfied that the instruction had a "harassing" effect (i.e. it did not have the effect of violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment).

Ms Kelly disagreed with the findings that her behaviour had been such as to reasonably give rise to concerns on the part of the line manager. In addition Ms Kelly relied on evidence that her line manager had objected to her speaking in her "native Russian", which she said necessarily linked the instruction to her national origin. Ms Kelly also said that there was evidence from her mental health worker that she had clearly been influenced by issues at work. Ms Kelly said that the ET had made an error by failing to consider the evidence from her mental health worker when it came to the conclusion that the behaviour of the employer did not have a "harassing" effect. Ms Kelly appealed the decision.

EAT decision

The EAT found that Ms Kelly was genuinely aggrieved that the ET did not accept her case and preferred the evidence of the Employer. The EAT noted that the ET had not rejected Ms Kelly's claims on the basis that an instruction that she should not speak Russian at work could never give rise to a complaint of direct discrimination or harassment, however, the ET had found that there was no less favourable treatment on the basis of either the actual comparators (the Ukrainian colleagues) or on the basis of a hypothetical comparator. In addition, the ET was satisfied that the Employer had a good non-discriminatory explanation. The EAT agreed with the ET's findings.

The EAT also found that the ET was entitled to conclude that the line manager had reasonable grounds for concern. This was especially in light of the environment in which the Employer operated. In relation to Ms Kelly's claim that she had been told not to speak her "native Russian", the ET did not actually find that the line manager had used those words, but even if it had the ET had gone on to consider the explanation for the treatment.

The EAT agreed that it was not Ms Kelly's race or national origin that had caused the line manager to give the instruction but was instead her behaviour, given the context in which the employer operated and the risks it faced. The EAT said that it was not necessary for it to consider the evidence from the mental health practitioner but would do so for completeness. The EAT found that this evidence did not refer to the instruction to Ms Kelly from her line manager and, in addition, it was not prepared at the time of the instruction. The EAT therefore concluded that the ET could rely on Ms Kelly's immediate reaction to the instruction. This was in her email response to the line manager and so the ET's conclusion in this respect should also be upheld.

Comment

Many employers will have employees whose first language is not English and line managers may be wary of having the conversations that Ms Kelly's line manager had to have with her. There have been reported cases where a member of staff speaking in a different language around colleagues who did not share that language resulted in those other colleagues feeling excluded. To prevent this situation occurring, employers may want to put appropriate policies in place or issue appropriate instructions.

However, the language used to convey those instructions can be all important. A (positive) requirement to speak English in the workplace could amount to a practice, from which an issue of indirect race discrimination could arise, if the requirement cannot be justified. A (negative) requirement not to speak a particular language at work could give rise to less favourable treatment because of something intrinsically linked to the employee's nationality, ie a direct race discrimination claim.  

As there is no justification defence available to an employer in a direct discrimination claim, the employer will only be able to defend the claim successfully if it can show that its reasons were unrelated to the employee's nationality, which can be more difficult (in this case, the Employer relied upon concerns about the employee being an animal rights activist). Therefore if an employer wants to have English spoken in the workplace, it is preferable to specify this rather than ban other languages. Making this subtle difference to your policy or instruction could reduce the risks of ending up in an ET having to defend a claim of direct discrimination like the employer in this case, but still allow managers to ensure that no colleagues are excluded because of language barriers.