What would ‘Brexit’ mean for UK employment law?

Following the recent announcement made by David Cameron that agreement had been reached on the EU reforms he was seeking, he confirmed (as many had already suspected) that the UK referendum on EU membership will take place on Thursday 23 June 2016.

No doubt we will all hear a great deal in the coming months about the advantages and disadvantages for the country in staying in or leaving the EU, but one of the key areas we and our clients are particularly interested in is what the implications would be for employment law if the UK were to leave – i.e. the so-called ‘Brexit’ scenario.

Some people have claimed that leaving the EU would drastically change the employment law landscape in the UK by removing many of the laws we currently have in place. Whether you think that is a good thing or not, and whichever side of the debate you are on, it is important to try to get to grips with what the practical implications could be.

It is not unusual to hear the EU being blamed for some of the laws that employers consider most burdensome, and it is true that some of the unpopular, complex rights do originate from the EU (TUPE being a good example!). However, in our experience, people are often unaware of how much of our employment law is actually self-generated rather than EU-imposed.

For example, in the case of discrimination laws, although we are required by EU law to have anti-discrimination legislation, UK law already dealt with many of the requirements before EU law made it mandatory. As just one example, the Race Relations Act 1976 (now replaced by the Equality Act 2010) came long before the EU Racial Equality Directive in 2000. On that basis, leaving the EU seems highly unlikely to result in these rights being removed.

Even for rights that have stemmed from EU law, such as the right to paid holiday (which comes from the Working Time Directive), it seems unlikely that the Government would seek to abandon these altogether if the UK were to leave the EU, given how unpopular such a move would be. There may be some areas where the UK Government would seek to redo certain provisions to make them more palatable to UK employers (perhaps in relation to the recent case law on holiday pay, or to remove the 48 hour maximum average on a working week), but I would be surprised if there were fundamental changes.

As far as TUPE is concerned, although strictly speaking the TUPE Regulations would fall away if we leave the EU, it doesn’t seem likely that the UK Government would scrap protection for employees in situations such as business sales or outsourcing. I suspect that they would come up with new legislation containing some of the essential elements of TUPE but without some of the problem areas. The fact that terms cannot easily be harmonised after a transfer has long been a headache for UK employers, so this could be an area targeted for change.

Family-friendly laws are one area where the EU is often thought to be the source of rights which some people perceive as excessive. However, although some family-friendly rights do originate in EU law, most of the UK rights actually go further than the EU requires, and some, such as flexible working, are solely of UK origin. On that basis, there would be no reason to remove these rights if the UK were no longer in the EU.

Of course even in a Brexit situation, we would still need to be able to trade with the EU. This would mean that undoubtedly the EU would still have significant influence on the UK, which could potentially include a requirement to maintain a certain level of employment rights (as is the case with countries like Norway).

From a legal perspective, if we were to leave the EU then the UK would no longer be required to be bound by the decisions of the European Court. However, it cannot be in the interests of any country for there to be legal uncertainty, so the general view among lawyers is that any cases already decided would probably be considered to be binding unless the law were specifically changed.

If the ‘Vote Leave’ campaign succeeds and the public vote on 23 June to end our membership of the EU, the UK would not leave the EU immediately. There would be a two year notice period, and it would of course take time to disentangle all of the various aspects of the relationship. Of course, no one can be sure of what exactly could happen, but based on what we know at the moment, it does not seem that there would be fundamental changes to most of our employment laws in the event of Brexit, at least not immediately.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Gender Pay Reporting

The Government have announced that new regulations will be introduced by Spring 2016 (no date has been given yet) which will require private sector and third sector employers with 250 or more employees to publish their gender pay gap. Mandatory reporting is expected by April 2017.

The draft regulations require employers to:

  • Publish overall gender pay gap figures calculated using both the mean and the median average. The “mean” is the “average” calculated by adding up all the numbers and then dividing by the number of numbers. The “median” is the “middle” value in the list of numbers. The median is thought to be the best representation of the typical difference between the genders as it is not distorted by a small number of very high earners.
  • Report on the number of men and women in each of four salary quartiles, based on the employer’s overall pay range. This is meant to show how the gender pay gap differs across the organisation, at different levels of seniority.
  • Exclude overtime payments from the calculation.
  • Publish separate information on the gender pay gap relating to bonuses. The regulations only require the mean bonus payments to be analysed separately, not the median.

Employers will have the option to include a narrative explaining any pay gaps and setting out what action they plan to take. The provision of a narrative will be strongly encouraged in the guidance accompanying the new regulations, but it will not be mandatory, as the Government feels this would be overly burdensome.

One obvious thing missing from the draft regulations is any enforcement mechanism. The Government believes that the very fact that the information is published will mean that employers will comply, but have indicated that if that is not the case then enforcement mechanisms will be introduced.

This development has implications for employers beyond the risk of equal pay claims. Their gender pay gap, and how they present and address it, may affect their brand, their reputation and their ability to recruit and retain staff. 

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Meaning of ‘day-to-day activities’

Regular readers may be familiar with the Equality Act 2010 under which an employee will meet the definition of disability, and therefore be entitled to protection from discrimination, if they have a physical or mental impairment and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

In the recent case of Banaszczyk v Booker, the question arose as to whether an employee’s work activities were normal day-to-day activities. Mr Banaszczyk was employed as a picker in a distribution centre and his duties involved lifting and moving cases, weighing up to 25 kilograms, by hand. Unfortunately, Mr Banaszczyk was injured in a car accident resulting in a back condition which left him unable to meet his employer’s required “pick rate”.

Mr Banaszczyk was referred to occupational health, who concluded that he was unable to meet his picking target and that his performance was not likely to improve in the foreseeable future.

Mr Banaszczyk was eventually dismissed on capability grounds and he brought claims for unfair dismissal and disability discrimination in the Employment Tribunal. A preliminary hearing was held for the Tribunal to decide whether Mr Banaszczyk was disabled under the equality legislation.

Whilst it was generally accepted that Mr Banaszczyk suffered from a long-term physical impairment, his employer did not accept that the impairment had a substantial effect on Mr Banaszczyk’s ability to carry out normal day-to-day activities.

The Tribunal accepted the medical evidence about the effect of Mr Banaszczyk’s physical impairment on his work, but found that Mr Banaszczyk did not meet the definition of disability under the Equality Act 2010 because the long-term physical impairment did not have a substantial effect on his carrying out normal day-to-day activities. The Tribunal found that Mr Banaszczyk was able to, for example, lift items off the shelves whilst out shopping, put shopping into the car and take lighter items out of the car and into his house.

Mr Banaszczyk appealed to the Employment Appeal Tribunal (EAT). The key issue in this case was whether the lifting and moving of cases weighing up to 25 kilograms amounted to normal day-to-day activities.

The Guidance to the Equality Act (which the Tribunal is required to take into account where it appears relevant) says that some work activities are so highly specialised that they would not be considered to be normal day-to-day activities, however other work-related activities may involve normal day-to-day activities.

The position of the European Court is that disability can include a physical impairment which may hinder a person’s full and effective participation in professional life, and this does not mean that the employee has to be unable to carry out any work in order to meet the definition of disability.

It was not clear to the EAT why the Tribunal decided the case as they did and the EAT found that Mr Banaszczyk was disabled. Mr Banaszczyk’s employer argued that the pick rate was the activity and was therefore so highly specialised that it could not be considered a normal day-to-day activity. The EAT however held that the manual lifting and moving of goods was a normal day-to-day activity and the substantial adverse effect was that Mr Banaszczyk was significantly slower in carrying out that activity.

The EAT’s decision concerned the issue of whether Mr Banaszczyk had a disability for the purposes of the Equality Act 2010 and so we will have to wait and see whether Mr Banaszczyk’s claims are decided in his favour by the Tribunal.

The important thing for employers to take away from this case is that an employee who may be able to carry out normal day-to-day activities outside of the workplace, could still fall within the definition of disability if they suffer from a physical (or mental) impairment which has a substantial and long-term adverse effect on their ability to carry out work-related activities.

If in doubt, it is always best to take advice – we have years of experience of advising on ill-health and disability issues and would be happy to help.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

 

Criminal offences during employment

The case of ex-Sunderland footballer Adam Johnson has been in the headlines in the past few weeks, as he is currently on trial for alleged sexual activity with a 15 year old girl (he has admitted two other offences). As a Sunderland fan (for my sins!), my interest in the case has partly been for its implications for the club, but as an employment lawyer the case is an example of a scenario I am often asked about – what employers can and cannot do when employees are facing criminal charges.

In Johnson’s case, when he was first arrested in March 2015 he was suspended by Sunderland, but after five weeks the club allowed him to resume playing. He was then charged in April 2015, and indicated his intention to plead not guilty. However, at the start of his trial on 10 February 2016 he changed his plea to guilty in relation to two of the offences. Following his change in plea, he was dismissed by Sunderland the next day.

Although it was initially suspected that Sunderland had been taken by surprise by the guilty plea, there has been some suggestion during the trial that the club may have known from a fairly early stage that there was truth to some of the allegations.

So could Sunderland have dismissed sooner, and what can we learn from the case that may apply to mere mortals who earn less than £60,000 per week?

Unfortunately, it is not unusual for employers to come across situations where employees are accused of criminal offences, sometimes serious offences. Some people mistakenly believe that employers cannot dismiss someone for criminal matters unless they are found guilty (or in Johnson’s case, plead guilty). That is not necessarily correct.

The first thing to consider is whether the allegation affects the employee’s work for the employer. This could be either because it directly affects the employer’s reputation, or because it affects the employee’s relationship with colleagues or customers. Assuming it does, then there are potential grounds for dismissal.

If the employee has at least two years’ service (and is therefore protected against unfair dismissal) then it will be crucial to follow a fair procedure if you are considering dismissing them in relation to the allegations they are facing. This will involve considering a range of factors, including how relevant the offence is to the employee’s work. Obviously where there are allegations of dishonesty this may be particularly relevant to someone who works in areas such as security or financial services, and where there are allegations relating to safeguarding matters that would be very significant for staff who work with children or vulnerable adults. It will also be important to consider whether there are ways the employee could remain in employment, such as any possibility of moving them to another part of the organisation.

Of course where someone is earning footballer money, the maximum unfair dismissal rights pale into insignificance in comparison to the contractual payments – but for most employers the maximum compensatory award of a year’s pay (or £78,335, whichever is the lower) means it is very important to minimise exposure by following the right process.

One issue that can arise with criminal allegations is that the employee may be advised by their solicitor not to comment, which can hamper an employer’s ability to investigate. If that is the case, the employer should give the employee the opportunity to explain and should carry out a reasonable investigation as far as possible in the circumstances. Having said that, an employer will often not be able to wait until the outcome of the criminal case is known, because that can take many months – as Johnson’s case shows, where it has taken nearly a year to reach trial. ACAS guidance specifically states that employers can still dismiss if the employee exercises their right to silence, and also that employers do not have to wait for the outcome of a prosecution before they take action. On that basis, Sunderland could perhaps have dismissed Johnson sooner, but there may well have been other factors to consider as well (possibly the fact that he scored several goals in the period leading up to his trial).

In considering whether to dismiss, it is worth remembering that an employer is not bound by the same standard of proof as the criminal courts – the evidence is considered on ‘the balance of probabilities’ rather than ‘beyond reasonable doubt’. This can sometimes mean it is fair to dismiss even if the person is acquitted, although it would be fairly unusual for an employer to take that step.

If an employee is given a custodial sentence then contrary to popular belief, their employment does not automatically end. Each case will depend on its own facts, but certainly with lengthy prison sentences it will generally be clear that the contract is ‘frustrated’, i.e. it comes to an end due to an event outside the parties’ control. Our previous article on the meaning of frustration (and how it can apply in ill-health cases) can be found here. The difficulty comes where the sentence may not necessarily be long enough for the employer to argue frustration, which is not an exact science.

In conclusion, there are a number of options available to employers whose employees are accused of criminal offences. Choosing the right approach for your particular situation is important and it is a good idea to consider all the relevant factors as I am sure Sunderland will have done in the case of Adam Johnson. If in doubt it is always best to take advice. The team here at Pure Employment Law have advised on many situations over the years involving employees accused of criminal offences, and we are always happy to talk things through. 

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Commission payments must be paid when on holiday

Last month in our article Employment Law, what to watch out for in 2016 we reported that British Gas had appealed to the Employment Appeal Tribunal (EAT) to seek to overturn the decision of the Employment Tribunal in Lock v British Gas Trading (2014) that holiday pay should include commission which the employee would have earned had he not been on holiday. The decision from the EAT has now been published and, perhaps not surprisingly, they have upheld the Tribunal’s decision that employees who are on holiday should be paid the commission they would have earned had they been at work.

The logic in this case does of course follow the reasoning as in the other long running holiday pay case, Bear Scotland v Fulton (2014), in which the EAT ruled that UK law must be interpreted in a way which conforms to European law by requiring employers to take into account non-guaranteed overtime payments when calculating holiday pay. It does seem likely that British Gas may well appeal against this decision to the Court of Appeal, but the trend does seem to be clear that holiday pay should reflect what the employee would have earned had they not been on holiday.

This is still a developing area of law, and questions such as what reference period to use in the calculations have not yet been answered by the courts. We will keep you updated on developments. 

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Employee monitoring – how far can you go?

Employee monitoring hit the headlines last week, with the latest case from the European Court of Human Rights making the main news bulletins (such as the BBC). The way the case was reported suggested that employers now have the green light to monitor employees’ online activity at work as much as they like. We look at what the case means in practice for employers and employment law.

There are inevitably some occasions when an employer wants to check up on what employees are getting up to during their working hours. Usually in my experience this will be for a particular reason, such as where misconduct is suspected, rather than as part of a general practice of monitoring all staff.

In the recent case (Barbulescu v Romania) the employee was exchanging messages with his fiancée and his brother using his employer’s computer equipment but via the Yahoo Messenger online service. The employer had a policy stating that personal use of the Internet was not permitted and also that monitoring could be undertaken.

Following an investigation, Mr Barbulescu was dismissed for his unauthorised use of the Internet and the company’s equipment. He brought a claim in relation to his dismissal in the Romanian courts, which failed, and he then brought a human rights claim against the Romanian government arguing that his right to privacy and correspondence had been infringed.

The European Court of Human Rights (ECHR) decided that Mr Barbulescu’s privacy had been breached, but that the Romanian courts had to balance that right to privacy against the employer’s right to protect its interests. In the circumstances, the balance that had been struck was fair and proportionate.

In particular, it was found to be relevant that Mr Barbulescu had told his employer that he only used the Yahoo Messenger service for business communications, and it was on that basis that the messages had been checked. Also, the ECHR found that it was not unreasonable for an employer to check whether its employees are working during their working hours. Here, the employer’s position was helped by the fact that they had not looked at other data or documents on the employee’s computer and had only examined the messages – the court said that this showed that the monitoring was limited and scope and therefore proportionate.

So does the case do what the media have reported and give employers the right to ‘snoop’ on their employees’ online activity whilst at work? Well no, not really. Although the case appeared to be found in the employer’s favour, that does not amount to an endorsement of everything that they did. In actual fact, all the ECHR did was to find that Romania had not breached Mr Barbulescu’s human rights by allowing him to be dismissed in circumstances where his privacy had been infringed.

As far as employers in the UK are concerned, the case does not really change much at all (which doesn’t make for very good headlines, but it is true!). Employers who want to engage in monitoring of employees’ online behaviour need to take account of the Data Protection Act and the Regulation of Investigatory Powers Act, and should have a clear policy in place setting out their right to monitor and to what extent personal use of systems is permitted. Our previous article on different kinds of employee monitoring can be found here.

In practice of course, employees who wish to exchange private messages during working hours without being monitored will probably do so via a smartphone. However, with the rise of Bring your Own Device (BYOD) arrangements where employees use their own devices to access the employer’s systems, we expect that this may well be an area where more cases will come along in future.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

 

 

Employment Law: what to watch out for in 2016

There’s plenty coming up in 2016, including:

National Living Wage: as we previously reported, the National Living Wage will come into effect from April 2016. Those over the age of 25 will be entitled to be paid a minimum of £7.20 per hour.

Financial Penalties: also due to come into effect from April 2016 are financial penalties for employers who fail to pay an employment tribunal or settlement awards. A warning notice will be issued first, followed by a penalty notice if the sum remains unpaid.

Employment Tribunal fees: employment tribunal fees are currently under review by the Ministry of Justice, and are the subject of a separate inquiry by the Justice Committee. Unison’s challenge to employment tribunal fees will be heard by the Supreme Court – a hearing date is awaited. The Scottish government has announced its intension to abolish employment tribunal fees in Scotland.

Holiday Pay: we previously reported on the case of Lock v British Gas Trading in which the European Court of Justice said that commission should be included in holiday pay (for the 4 weeks’ leave under the Working Time Directive). The case then went back to the Tribunal to decide whether the UK Working Time Regulations were compatible with the ECJ decision. The Tribunal decided that new wording had to be added to the WTR so that commission is included in holiday pay for workers with normal working hours. British Gas appealed the decision and the appeal was heard by the Employment Appeal Tribunal in December 2015, the EAT’s judgment is awaited. We will of course keep you up to date of developments.

TUPE: an appeal against the EAT’s decision in BT Managed Services v Edwards in which it was held that an employee who was off sick for 6 years with no prospect of returning to work was not “assigned” to an organised grouping for TUPE purposes, is expected to be heard by the Court of Appeal in June 2016.

Trade Union Bill 2015-16: currently going through the House of Lords, the Bill contains provisions to increase ballot thresholds, extend requirements of notice to be given to employers, introduce time limits on ballots and impose stricter requirements for unions to supervise picketing.

Gender Pay reporting: the government consultation closed in September 2015 and regulations are expected in Spring 2016 which will require employers with at least 250 employees to publish information on the gender pay gap.

We will of course keep you updated on all of the key employment law stories during 2016 via our free monthly employment law ebulletins.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Q&A: Mitigation of loss

Question: A few months ago we dismissed John, an employee with three years’ service, and he brought a claim for unfair dismissal. Although we tried negotiating with him through ACAS, we were unable to agree a settlement – so we are going to the Employment Tribunal to defend the claim. We have recently found out that John started a new job not long after we dismissed him (although he is earning much less than when he worked for us). If he wins his case, we believe he will be looking to claim for the difference between what he is earning in his new job and what he would have earned if we hadn’t dismissed him.

We know that John is very well qualified (we paid for his training!) and capable of earning a lot more than he is currently. We have seen job adverts locally for roles similar to the one he did for us and on similar wages to what we were paying him, so we don’t understand why he didn’t go for one of those jobs. If John’s claim succeeds, are we going to have to pay him for his loss of earnings when it seems he could have got a higher paid job almost straight away and with little effort?

Answer: If John wins his unfair dismissal claim then one element of the compensation he will be entitled to is a compensatory award. The amount of this award is determined by what the Tribunal considers “just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer“. John will be able to claim for loss of earnings from the date of his dismissal to the date of the Tribunal hearing (credit will be given for any pay in lieu of notice he received), and for his future loss of earnings to the extent that the Tribunal considers just and equitable. The amount of the compensatory award will be subject to the statutory cap.

Employees who bring claims like John’s are expected to take steps to mitigate their losses, such as applying for other jobs or applying for state benefits.

The recent Employment Appeal Tribunal (EAT) case of Cooper Contracting v Lindsey set out some of the key principles relating to mitigation of loss.

The Cooper case concerned Mr Lindsey who worked for Cooper Contracting as a carpenter. Mr Lindsey’s contract was terminated and he then chose to work as a self-employed tradesman (something he had done before working for Cooper) even though he could have earned more working as an employee. The Tribunal found that Mr Lindsey had been unfairly dismissed and, when considering compensation, found that it was reasonable for him to have gone back to working as a self-employed tradesman. The Tribunal made an award for Mr Lindsey’s past losses, however the Tribunal found that it was just and equitable to limit his award for future losses to 3 months’ to reflect his decision to be his own boss despite the employment opportunities in the labour market.

Cooper appealed to the EAT, not against the finding that Mr Lindsey had been unfairly dismissed, but on the grounds that the Tribunal had erred in its approach to mitigation and its calculation of Mr Lindsey’s losses.

The EAT dismissed Cooper’s appeal and set out the key principles, which when applied to your situation would mean that:

  • John does not have to take all reasonable steps to mitigate his losses;
  • John does not have to prove that he mitigated his loss or that what he did was reasonable – you have to prove that he acted unreasonably in failing to mitigate;
  • There is a difference between acting reasonably and not acting unreasonably;
  • It is for the Tribunal to decide what is reasonable and what is not, although John’s views and wishes will be taken into account;
  • If you do not put forward evidence that John has failed to mitigate then the Tribunal is not under an obligation to make that finding.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

It might as well be Double Dutch!

Can an employer lawfully require its employees not to speak their native language in the workplace, but only to speak English? That was the question for the Employment Appeal Tribunal in the recent case of Kelly v Covance Laboratories Limited.

In that case, Mrs Kelly, who is Russian, worked for Covance as an analyst. Covance Laboratories carried out animal testing and had previously been infiltrated by animal rights protestors, and some of their staff had been physically assaulted. Mrs Kelly was still in her probationary period with Covance, and concerns were raised by her manager and by other colleagues about her behaviour. She was spending a large amount of time on her mobile phone, and also frequently visiting the office toilets where she was having lengthy conversations with people in Russian. Her manager thought that it may be the case that Mrs Kelly was in fact an animal rights activist who had infiltrated the company. He therefore instructed her that in future any conversations she had at work were to be conducted in English so that managers could understand what she was saying. Mrs Kelly objected, saying that two Ukrainian colleagues who also spoke Russian at work were not being subjected to the same treatment. Her manager therefore asked the Ukrainian employees’ manager to pass on a similar message to them.

Covance then discovered that Mrs Kelly had been convicted of benefit fraud and had been sentenced to a suspended prison sentence. She had failed to disclose this to the company and as a result was summoned to a disciplinary hearing. Mrs Kelly raised a grievance alleging race discrimination against her manager. Those claims were investigated and dismissed, and then Mrs Kelly resigned the day before the disciplinary hearing was scheduled to be heard. She then brought various claims against the company, including a claim of race discrimination on the basis that she was being required to only speak English at work. All the claims were rejected by the Employment Tribunal and Mrs Kelly appealed to the Employment Appeal Tribunal (EAT) on the race claim.

Under the Equality Act 2010 direct race discrimination occurs where a person treats another less favourably than they would treat another because of their race. Race is defined in the Act as including colour, nationality or ethnic or national origins. Mrs Kelly was arguing that preventing her from speaking Russian amounted to subjecting her to less favourable treatment because of her nationality or national origin. She also argued that this amounted to harassment under the Equality Act 2010. In support of her arguments she relied on some previous cases including Dziedziak v Future Electronics Ltd (2011) in which the EAT upheld the decision of an Employment Tribunal 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.

In the case of Mrs Kelly, the EAT upheld the Employment Tribunal’s decision to reject her claims. They considered that Covance had a reasonable explanation for its actions and that those actions 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 Covance reasonably had about her behaviour in the context in which it operated. They held that in the context of Covance’s activities in carrying out animal testing and the security requirements arising from this, it considered it important that conversations in the workplace were capable of being understood by its English speaking managers. Therefore the instruction was not because of Mrs Kelly’s race or national origin.

These types of cases are always going to be very fact specific. Simply instructing staff to only speak in English may well amount to discrimination if there is no non-discriminatory reason for the instruction. As always, it is best to seek specialist advice if you find yourself in this type of situation.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

 

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