In Kelly v Covance Laboratories Ltd, the Employment Appeal Tribunal considered whether an employer’s instruction not to speak Russian at work was race discrimination.
Mrs Kelly, who was Russian, was employed by Covance Laboratories Ltd (Covance) which carries out animal testing. Some of the company’s employees had been subjected to violent assaults by animal rights activists and the company had previously employed people who turned out to be animal rights activists working undercover.
Covance had concerns about Mrs Kelly’s behaviour from the start. She frequently used her mobile phone during working hours and had long conversations in Russian on her phone in the toilets. As a result of her suspicious behaviour, she was instructed not to speak Russian at work, so that any conversations she had could be understood by her managers. Similar instructions were given to Mrs Kelly’s Ukrainian colleagues.
At Mrs Kelly’s two month probationary review, she was informed that the company intended to start a formal capability procedure. Mrs Kelly raised a grievance complaining of race discrimination. Her grievance was rejected and she was invited to attend a formal capability meeting.
Covance discovered that Mrs Kelly had been convicted of benefit fraud and given a suspended prison sentence. She was invited to attend a disciplinary hearing to consider the allegation that she had failed to disclose a criminal conviction. Mrs Kelly resigned the day before the hearing and lodged various claims against the company, including a race discrimination and harassment claim. When her claims were rejected by the Employment Tribunal, she appealed to the EAT.
The EAT rejected the appeal. Covance had provided a reasonable explanation for its actions that weren’t related to Mrs Kelly’s race or nationality. The reason she was instructed to speak English was not because she was Russian, but because of reasonable suspicions Covance had about her behaviour. In the context of Covance’s business activities and the security requirements relating to this, it was important that any conversations in the workplace could be understood by the English-speaking managers. This case highlights an issue which is a potential problem for many employers. Many organisations will employ some people who do not speak English as their first language who may wish to speak their first language to colleagues of the same nationality, or when on the telephone to friends and family. If an employer has good business reasons to justify a language requirement at work, as it did in this case, it should ensure that the requirements of the policy are clear and are applied in a consistent way. If an employer imposes language restrictions when they are not justified, or applies a language policy in an unfair way, the affected employees are likely to have grounds upon which to pursue a discrimination claim against their employer.