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.