Was it discriminatory for an employer to instruct an employee not to speak in her native language at work, but rather to speak in English?
Such was the question before the Employment Appeal Tribunal in the recent case of Kelly v Covance Laboratories Ltd.
The Equality Act 2010 contains provisions protecting employees from discrimination based upon protected characteristics such as age, sex, race, disability, sexual orientation and so on. That Act also identifies different types of discrimination such as:
- Direct Discrimination – where an Employee is treated less favourably because of a protected characteristic.
- Indirect Discrimination – where an Employer has a provision, criterion or practice (think ‘work-rule’) that is applied equally to all Employees, but which disadvantage Employees sharing a protected characteristic, and the Employee in particular.
- Harassment – where, related to a protected characteristic, an Employee is subjected to unwanted conduct that has the purpose or effect of creating an offensive, intimidating or hostile environment.
In the case of Kelly, Mrs Kelly was of Russian national origin. On 3rd February 2014, she obtained employment with Covance Laboratories Ltd, which was a large company that operated a testing laboratory in Harrogate. That laboratory had previously come to the attention of the animal rights movement and several employees had been subjected to violent assaults.
Mrs Kelly’s manager became suspicious of her behaviour, which included speaking in Russian on her mobile phone whilst at work, and disappearing to the lavatory with her phone for extended periods of time. The manager was worried that she might be an animal rights infiltrator. On 5th March 2014, he instructed her not to speak Russian at work as he felt it important that all conversations were capable of being understood by English speaking managers. Mrs Kelly pointed out that other colleagues also spoke Russian at work and the manager gave an instruction that they should not do so. Some months later after unrelated capability, disciplinary and grievance proceedings, Mrs Kelly resigned. She then brought an application before the Leeds Employment Tribunal asserting both direct race discrimination and harassment on the basis of the instruction not to speak in her native Russian. She lost at first instance and prosecuted an appeal before the Employment Appeal Tribunal (‘EAT’).
Rejecting the appeal, Her Honour Judge Eady QC found that the Employment Tribunal had correctly applied the law and had made reasonable findings of fact. The decision to instruct Mrs Kelly to only speak in English at work was not made because of her race or national origin but because of suspicions relating to her behaviour at work.
Comment: The EAT observed that as well as giving rise to potential direct discrimination and harassment claims, an instruction to only speak English at work might also give rise to a claim for indirect discrimination. Employers adopting an ‘English only’ speaking rule will need to have a very good reason for so doing.