Kelly v Covance Laboratories EAT/0186/15

Why care?

The EAT held that an employment tribunal was correct to reject an employee’s claims that her employer’s instruction for her to not speak Russian at work was direct race discrimination and harassment.

The case

Covance Laboratories Ltd (Covance) uses animals to test products and had previously received unwelcome attention from animal rights activists, including violent assaults on some of its employees, and activists working undercover in the company in order to obtain information to further their campaign. Mrs Kelly (the Claimant), who is of Russian national origin, was employed by as a contract analyst subject to an initial 6 month probationary period.

Early in her employment there were concerns whether she could be an animal rights activist who had infiltrated the company due to her frequent mobile phone calls at work and having long conversations in Russian on her mobile in the office toilets. Because of the Claimant’s suspicious behaviour her manager instructed her to not speak Russian at work in order that any conversations she had in the workplace could be understood by English-speaking managers. When the Claimant objected that two Ukrainian colleagues also spoke Russian at work, her manager asked their managers to pass on similar instructions to those employees. The Respondent’s language policy operated in the context of the Respondent’s requirement for its English-speaking managers to understand conversations for security reasons.

Covance’s concerns regarding the Claimant’s conduct and performance continued and at her two-month probationary review, she was told that she would be moved into a formal capability process. The Claimant then raised a grievance against the manager which included complaints of race discrimination. The complaints were rejected following an investigation and she was invited to attend a formal capability meeting. Covance then discovered that the Claimant had previously been convicted of benefit fraud and given a suspended prison sentence. It invited her to a disciplinary hearing to consider the allegation that she had failed to disclose her criminal conviction. The Claimant resigned prior to that meeting and subsequently brought claims in the employment tribunal that she had been subjected to discrimination and harassment on the grounds of race or national origin. These were dismissed by the tribunal which found that the policy of requiring only English to be spoken at work was not applied because of the Claimant’s race or national origin, but due to her behaviour at work in the context of potential security concerns that it had. The correct comparator was another employee speaking some language other than English in circumstances which gave the manager reasonable cause for concern. It was neither direct discrimination nor harassment, as although the instruction was unwanted conduct, it had not caused harassment as it was not related to the Claimant’s nationality.

The Claimant appealed the decision in respect of her claims for (a) direct race discrimination on the grounds of nationality or national origin (Russian) and (b) race harassment in relation to the prohibition on the Claimant speaking Russian in the workplace. The EAT dismissed the appeal.

In relation to the direct discrimination claim:

  • the reason for the instruction given to her was not because the Claimant was Russian, but because of the suspicions Covance reasonably had about her behaviour in the context in which it operated and that for security reasons it was important that employees in the workplace were capable of being understood by its English-speaking managers;
  • the EAT noted that the tribunal had found that Covance had asked managers of the Claimant’s named comparators to give them the same instruction about not speaking Russian at work and that the company 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. The EAT concluded that the employment tribunal had reached a permissible conclusion that the reason for the instruction was not the Claimant’s race or nationality, whether the actual or the hypothetical comparators were considered.
  • Covance had a reasonable explanation for its actions that were not related to the Claimant’s race or nationality. Whilst it can be direct discrimination or harassment to ban the use of a foreign language at work, a comparator speaking any other language apart from English would have been treated in the same way as the Claimant.

In relation to the harassment claim:

  • although an instruction to not speak Russian was unwanted conduct, the EAT considered that the tribunal had correctly decided that it was not related to the Claimant’s nationality; it was because her manager was suspicious of the Claimant’s conduct. The EAT also agreed with the tribunal that the instruction did not have the effect or purpose of violating the Claimant’s dignity, or creating an intimidating, hostile, degrading or offensive environment for her at work.

What to take away?

Where employers who have employees whose native language is not English they may, understandably, wish to speak in their first language to other colleagues of the same nationality, or by telephone to family and friends while at work. This can potentially cause problems with other employees who do not speak that language who may feel excluded, or raise concerns, as in this case, of security or perhaps health & safety issues. Employers should consider whether they have legitimate business reasons to justify a language requirement at work, ensure that it has a clear policy and that it is applied consistently to employees of all nationalities.