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The Employment Appeal Tribunal (EAT) has upheld a decision that an employer's instruction to a Russian employee to speak in English in the workplace was not direct race discrimination or harassment.
In the case of Kelly v Covance Laboratories, Mrs Kelly, who is Russian, was employed as a contract analyst at Covance Laboratories, a laboratory involved with animal testing.
In the early stages of her employment her line manager, Mr Simpson, became concerned about her conduct - including frequently going to the bathroom with her mobile phone and speaking on her phone in Russian. Mr Simpson became concerned that she could be an animal rights activist, as the laboratory had in the past been infiltrated by activists working undercover to obtain information in support of their campaign.
As a result of his concerns, Mr Simpson instructed Mrs Kelly not to speak in Russian at work so that any conversations could be understood by her English-speaking managers.
Mrs Kelly made claims that this instruction amounted to direct race discrimination and racial harassment.
Employment Tribunal's (ET) decision
The ET rejected her claims. It was satisfied that Mr Simpson's instruction was due to reasonable concerns he had about Mrs Kelly's behaviour in light of very real risks to Covance's business.
It held that the correct comparator in this case was another employee speaking a language other than English in circumstances that gave Mr Simpson reasonable cause for concern. The ET was satisfied that Mr Simpson would have given the same instruction to such a person and it was therefore not directly discriminatory. For similar reasons, it held that the instruction could not constitute harassment, as iot was not given because of Mrs Kelly's race.
The EAT has now upheld the ET's decision, finding that the ET was entitled to conclude that Mr Simpson had reasonable grounds for concern, and that any comparator who had raised similar concerns (given the environment in which Covance worked) would have been treated in the same way.
A diverse workforce is, of course, a good thing, but sometimes employers may find that language barriers present particular issues. There may be times when an employer will want all employees to speak a common language - but imposing such a requirement should be done with care.
Where a particular employee is being singled out, there will need to be a very clear non-discriminatory reason for the instruction.
In this particular case, the key to the finding that the instruction to speak in English was not discriminatory was that the ET was satisfied that Mr Simpson had a justifiable concern that Mrs Kelly could have been an animal rights infiltrator. Had Mr Simpson's evidence not been believed, the result could have been very different.
Looking more broadly, a policy for all employees to speak in a particular language could be indirectly discriminatory on the ground of race and nationality. It will be incumbent on an employer to show that the policy is a proportionate means of achieving a legitimate aim.
By way of example, whilst a request for those working on a building site to speak in one common language during work time may be justifiable for health and safety reasons, extending the request to cover rest breaks is likely to be more difficult to justify.