Kelly V Covance Laboratories Limited (EAT)
In the above case the
Employment Appeals Tribunal (EAT) considered whether an instruction
to an employee not to speak her native Russian language at work was
direct race discrimination or race harassment.
In this case the Employee, Mrs
Kelly was employed by Covance Laboratories Limited as a Contract
Analyst. Mrs Kelly was Russian. The Company carried out
animal testing and had previously had issues with animal rights
activists, including violent assaults on one of its employees,
activists working undercover in the Company in order to obtain
information and problems generally.
Concerns in relation to Mrs
Kelly's behaviour had been raised at the outset of her
employment. This behaviour included her frequent use of her
mobile phone at work and her having long conversations in Russian
on her mobile in the office toilets. The employer considered
Mrs Kelly's conduct to be sufficiently unusual for her line
manager, Mr Simpson, to consider whether she was in fact an animal
rights activist who had infiltrated the Company. This had
happened previously. Because of Mrs Kelly's suspicious
behaviour, her line manager Mr Simpson instructed her not to speak
Russian at work in order that any conversation she had in the work
place could be understood by English speaking managers. Mrs
Kelly objected stating that two Ukrainian colleagues also spoke
Russian at work. In response Mr Simpson asked their managers
to pass on similar instructions to those
Amid concerns in relation to
Mrs Kelly's conduct and performance she was advised, at her two
month probationary review, that the Company intended to start a
formal capability procedure.
Mrs Kelly raised a grievance
against Mr Simpson complaining of race discrimination.
Further to an investigation, the employer rejected the grievance
and invited her to attend a formal capability
Meanwhile the employer
discovered that Mrs Kelly had been convicted of benefit fraud and
given a suspended prison sentence. Mrs Kelly was invited to a
disciplinary hearing to consider the allegation that she had failed
to disclose her criminal conviction.
The day before the
disciplinary hearing was due to take place, Mrs Kelly
resigned. Mrs Kelly then brought various claims in the
Employment Tribunal all of which were dismissed. Mrs Kelly
appealed the decision in respect of her claims of direct race
discrimination on the grounds of nationality or national origin and
In considering the appeal the
EAT dismissed the appeal.
The case of Dziedziak V Future
Electronics Limited came under consideration. Here the EAT
upheld an Employment Tribunal's decision that an instruction given
by a manager to an employee to not speak in her own language
(Polish) at work was direct race discrimination on the grounds of
her nationality. It considered that language was
"intrinsically part" of nationality. On that basis Mrs
Kelly's case appeared to be guaranteed to succeed. However,
the EAT distinguished the case by reference to the "intrinsic link"
test and stated that the test as laid down in the Dziedziak case
only went to shift the burden of proof to the Respondent in respect
of the direct discrimination claim.
In the case of Mrs Kelly the
Company, Covance had a reasonable explanation for its actions that
were not related to Mrs Kelly's race or nationality. The
reason for the instruction was not because Mrs Kelly was Russian
but because of the suspicions that Covance reasonably had about her
behaviour in the context in which the Company operated. Given
that Covance carried out animal testing and given that enhanced
security requirements arose from this it was considered important
that conversations in the workplace were capable of being
understood by its English speaking managers. The EAT also
took into account the fact that the Tribunal had found that Mr
Simpson had asked the managers of Mrs Kelly's named comparators to
give them the same instruction about not speaking Russian at
The EAT found that Covance
would have given same instructions 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 and that
the reason for the instruction not to speak in Russian was not Mrs
Kelly's race or nationality, whether the actual or the hypothetical
comparator were considered.
In considering the harassment
claim the EAT found that whilst the instruction to not speak
Russian was unwanted conduct, the EAT considered that the Tribunal
had been correct to find it was not related to Mrs Kelly's
nationality it was rather because of Mr Simpson position in
relation to Mrs Kelly's conduct.
The EAT also agreed with the
Tribunal's finding that the instruction did not have the effect or
purpose of violating Mrs Kelly's dignity, or creating an
intimidating, hostile, degrading or offensive environment at
This case is an interesting
one particularly as many employers have an international
Where there is a good business
reason to justify a language requirement at work as in the case of
Mrs Kelly and Covance then there should be a clear policy which
should be applied consistently to employees of all
In the case of Mrs Kelly she
was treated in the same way as other colleagues who did not speak
English as their first language and her claim failed.
However, in a contrasting case of Jurga, Mrs Jurga and her Polish
speaking colleagues were treated differently in practice to their
Italian colleagues who continued to speak Italian in their breaks
without colleagues raising an objection.
In August 2015 ACAS published
guidance entitled "Race Discrimination, Key Points for the
Workplace". In relation to language and language requirements
ACAS recognised that organisations may employ staff from many
different parts of the world. ACAS gives the following
advice, an employer can:
- Specify a language of
operation, usually English, for business reasons. An example
of this would be in promoting effective communication in the
running of an organisation so messages are consistently delivered
- Insisting in recruiting a job
candidate who has skills in English necessary for the job, but it
must not select based on assumptions about race nationality or
ethnic or national origins.
- Consider in limited
circumstances offering assistance to those whose English skills are
limited. For example, an employer may wish to provide an
interpreter at a disciplinary hearing.
ACAS however caution that
employers should be weary of prohibiting or limiting the use of
other languages within the workplace unless they can justify this
as a genuine business reason. ACAS gives as an example, a
situation where 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".
Posted on: 12/01/2016
This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.
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