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 employees. 

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 meeting. 

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 race harassment. 

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 work.

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 work.

This case is an interesting one particularly as many employers have an international workforce.

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 nationalities.

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:

  1. 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 and understood. 
  2. 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. 
  3. 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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