In the case of Kelly v Covance Laboratories Limited, the Employment Appeal Tribunal has held that an instruction to an employee not to speak their native language at work was not an act of direct race discrimination or harassment on the grounds of race. Although it accepted that language is “intrinsically” part of nationality, the employer in this case had a clear explanation for giving the instruction which was unrelated to the employee’s nationality and which did relate to a genuine and reasonably held concern of the Respondent.
The Claimant, Mrs Kelly, is a Russian national who was employed by the Respondent as a contract analyst. The Respondent’s business involves animal testing and it had therefore been the subject of attention from animal rights activists. Among other things, some of its staff had been subjected to violent assaults and the Respondent had been infiltrated by activists posing as new employees.
Soon after her employment started, the Respondent became suspicious of the Claimant’s behaviour. It was concerned, in particular, about her habit of locking herself in the toilets for long periods of time and speaking Russian on her mobile. Her line manager became concerned that she may be an infiltrator and so instructed her not to speak Russian at work, so that English speaking managers could understand what was being said.
The relationship between the Claimant and the Respondent broke down when the Respondent raised concerns about the Claimant’s performance. She resigned and brought claims of race and sex discrimination, harassment and victimisation.
The Employment Tribunal (“ET”) dismissed all of the claims. The Claimant then appealed to the Employment Appeal Tribunal (“EAT”) in relation to the race discrimination and harassment claims.
Under the Equality Act 2010, direct discrimination is defined as follows: “a person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”.
The Act also states that A harasses B if: (a) A engages in unwanted conduct related to a relevant protected characteristic, and; (b) the conduct has the purpose or effect of (i) violating B’s dignity or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
Race is a protected characteristic and is defined under the Act as including the Claimant’s colour, nationality and ethnic or national origins.
If a Claimant can show that there are facts from which a tribunal could decide, in the absence of any other explanation, that discrimination had occurred, then the burden of proof will shift to the Respondent to show that it did not in fact discriminate against the Claimant.
The EAT upheld the ET’s decision and dismissed the appeal.
It found that, as a person’s native language is clearly intrinsically linked to their race and/or national origins, it was possible for an instruction not to speak that language to amount to an act of direct race discrimination. However, this only went so far as to shift the burden of proof to the Respondent, who then had the opportunity to show that there was a non-discriminatory reason for the treatment.
On the facts, the Respondent had shown that it had a non-discriminatory reason for behaving as it did. In light of the risk posed by animal rights activists and the unusual behaviour displayed by the Claimant, it had a clear explanation for asking her not to speak in her native language as it needed to ensure that she could be understood by her managers. Further, the instruction was given as a result of reasonably held concerns about the Claimant’s behaviour.
The EAT decided that the correct comparator in this case was another employee speaking a language other than English in circumstances which gave their manager cause for concern. As the ET had made a clear finding that such an employee would have been treated no differently from the Claimant, the treatment was not “because of” her race and so was not discriminatory.
In relation to the harassment claim, the EAT agreed with the ET that the reason for the instruction not to speak Russian (which the Claimant said amounted to harassment) was not because of her nationality but because of the concerns that the Respondent had about her behaviour. Alternatively, there was no evidence that the instruction had the purpose or effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. On either limb, therefore, the claim failed.
This case is helpful for employers insofar as it confirms that an instruction to an employee not to speak their native language will not always be an act of direct race discrimination. However, the facts in this case are unusual and it will often be much more difficult than it was here for an employer to show that they had a non-discriminatory reason for such treatment.
In particular, employers should be aware that it is not possible to provide a justification for acts of direct discrimination – if an Employment Tribunal finds that a Claimant has been treated less favourably because of their race then they must find that the Claimant has been directly discriminated against, even if the employer’s motives are reasonable or benign.
If employees speaking languages other than English at work causes problems for your organisation then one forward-looking solution may be to introduce a policy applying across the board which states that English should be spoken in the workplace. In other words, the obligation should be framed as a positive obligation to speak English, rather than requiring employees not to speak any other language. Doing so could mean that the requirement shifts from being linked to nationality (and so directly discriminatory) to being a provision, criterion or practice which applies to the whole workforce but which may have a disproportionate or negative impact on some employees sharing the same protected characteristic. In this case, the instruction may be indirectly discriminatory but would be capable of justification if the employer can show that it is a proportionate means of achieving a legitimate aim. This approach potentially gives an organisation more scope to impose a requirement for employees to speak only in English when it has a genuine need for them to do so.