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Kelly V Covance Laboratories Limited (EAT)

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In the above case theEmployment Appeals Tribunal (EAT) considered whether an instructionto an employee not to speak her native Russian language at work wasdirect race discrimination or race harassment.

In this case the Employee, MrsKelly was employed by Covance Laboratories Limited as a ContractAnalyst. Mrs Kelly was Russian. The Company carried outanimal testing and had previously had issues with animal rightsactivists, including violent assaults on one of its employees,activists working undercover in the Company in order to obtaininformation and problems generally.

Concerns in relation to MrsKelly's behaviour had been raised at the outset of heremployment. This behaviour included her frequent use of hermobile phone at work and her having long conversations in Russianon her mobile in the office toilets. The employer consideredMrs Kelly's conduct to be sufficiently unusual for her linemanager, Mr Simpson, to consider whether she was in fact an animalrights activist who had infiltrated the Company. This hadhappened previously. Because of Mrs Kelly's suspiciousbehaviour, her line manager Mr Simpson instructed her not to speakRussian at work in order that any conversation she had in the workplace could be understood by English speaking managers. MrsKelly objected stating that two Ukrainian colleagues also spokeRussian at work. In response Mr Simpson asked their managersto pass on similar instructions to thoseemployees.

Amid concerns in relation toMrs Kelly's conduct and performance she was advised, at her twomonth probationary review, that the Company intended to start aformal capability procedure.

Mrs Kelly raised a grievanceagainst Mr Simpson complaining of race discrimination. Further to an investigation, the employer rejected the grievanceand invited her to attend a formal capabilitymeeting.

Meanwhile the employerdiscovered that Mrs Kelly had been convicted of benefit fraud andgiven a suspended prison sentence. Mrs Kelly was invited to adisciplinary hearing to consider the allegation that she had failedto disclose her criminal conviction.

The day before thedisciplinary hearing was due to take place, Mrs Kellyresigned. Mrs Kelly then brought various claims in theEmployment Tribunal all of which were dismissed. Mrs Kellyappealed the decision in respect of her claims of direct racediscrimination on the grounds of nationality or national origin andrace harassment.

In considering the appeal theEAT dismissed the appeal.

The case of Dziedziak V FutureElectronics Limited came under consideration. Here the EATupheld an Employment Tribunal's decision that an instruction givenby a manager to an employee to not speak in her own language(Polish) at work was direct race discrimination on the grounds ofher nationality. It considered that language was"intrinsically part" of nationality. On that basis MrsKelly'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 caseonly went to shift the burden of proof to the Respondent in respectof the direct discrimination claim.

In the case of Mrs Kelly theCompany, Covance had a reasonable explanation for its actions thatwere not related to Mrs Kelly's race or nationality. Thereason for the instruction was not because Mrs Kelly was Russianbut because of the suspicions that Covance reasonably had about herbehaviour in the context in which the Company operated. Giventhat Covance carried out animal testing and given that enhancedsecurity requirements arose from this it was considered importantthat conversations in the workplace were capable of beingunderstood by its English speaking managers. The EAT alsotook into account the fact that the Tribunal had found that MrSimpson had asked the managers of Mrs Kelly's named comparators togive them the same instruction about not speaking Russian atwork.

The EAT found that Covancewould have given same instructions to a hypothetical comparator,being another employee speaking a language other than English incircumstances that gave it cause for concern.

The EAT concluded that theEmployment Tribunal had reached a permissible conclusion and thatthe reason for the instruction not to speak in Russian was not MrsKelly's race or nationality, whether the actual or the hypotheticalcomparator were considered.

In considering the harassmentclaim the EAT found that whilst the instruction to not speakRussian was unwanted conduct, the EAT considered that the Tribunalhad been correct to find it was not related to Mrs Kelly'snationality it was rather because of Mr Simpson position inrelation to Mrs Kelly's conduct.

The EAT also agreed with theTribunal's finding that the instruction did not have the effect orpurpose of violating Mrs Kelly's dignity, or creating anintimidating, hostile, degrading or offensive environment atwork.

This case is an interestingone particularly as many employers have an internationalworkforce.

Where there is a good businessreason to justify a language requirement at work as in the case ofMrs Kelly and Covance then there should be a clear policy whichshould be applied consistently to employees of allnationalities.

In the case of Mrs Kelly shewas treated in the same way as other colleagues who did not speakEnglish as their first language and her claim failed. However, in a contrasting case of Jurga, Mrs Jurga and her Polishspeaking colleagues were treated differently in practice to theirItalian colleagues who continued to speak Italian in their breakswithout colleagues raising an objection.

In August 2015 ACAS publishedguidance entitled "Race Discrimination, Key Points for theWorkplace". In relation to language and language requirementsACAS recognised that organisations may employ staff from manydifferent parts of the world. ACAS gives the followingadvice, an employer can:

  1. Specify a language ofoperation, usually English, for business reasons. An exampleof this would be in promoting effective communication in therunning of an organisation so messages are consistently deliveredand understood.
  2. Insisting in recruiting a jobcandidate who has skills in English necessary for the job, but itmust not select based on assumptions about race nationality orethnic or national origins.
  3. Consider in limitedcircumstances offering assistance to those whose English skills arelimited. For example, an employer may wish to provide aninterpreter at a disciplinary hearing.

ACAS however caution thatemployers should be weary of prohibiting or limiting the use ofother languages within the workplace unless they can justify thisas a genuine business reason. ACAS gives as an example, asituation where telling two employees that they must speak Englishto each other outside of business operations when their firstlanguage is Russian could be potentially discriminatory. However, an employer might be able to justify this if otheremployees feel excluded or bullied because they cannot join in "inthe course of their employment".

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.

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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