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Race Discrimination - A Fine Line For Many Employers

Instruction not to speak native language at work was found not to be race discrimination (EAT)

In Kelly v Covance Laboratories Ltd UKEAT/0186/15the EAT considered whether an instruction to an employee to not speak Russian at work was direct race discrimination or race harassment.

In this case, a Russian employee, Mrs Kelly, was employed by Covance Laboratories Ltd. From early on in her employment, Covance had concerns over her conduct and performance. Her line manager, Mr Simpson, was suspicious of her unusual behavior which included frequently using her mobile phone at work and having long conversation in Russian on her mobile in the office toilets, to the point that Mr Simpson suspected she may have been an animal rights activist that had infiltrated the company, as had previously happened before. Mr Simpson therefore instructed her not to speak Russian at work so that conversations she had in the workplace could be understood by English-speaking managers. Mrs Kelly argued that her Ukrainian colleagues also spoke Russian in the work place. Mr Simpson therefore asked the other managers to pass on the same request.

As the concerns over Mrs Kelly’s conduct and performance continued, she was informed at her two-month review that Covance would be starting a formal capability procedure. Mrs Kelly then raised a grievance against Mr Simpson claiming race discrimination. Following an investigation, Covance rejected the grievance and invited Mrs Kelly to attend the formal capability meeting.

Covance then discovered that Mrs Kelly had been convicted of benefit fraud and been given a suspended prison sentence and she was invited to a disciplinary hearing in order to consider the allegation that she had not disclosed a criminal conviction. However, the day before the disciplinary hearing, Mrs Kelly resigned. She then brought various claims to the employment tribunal, all of which were dismissed. Mrs Kelly appealed the decision in respect of the direct race discrimination on the grounds of nationality or national origin and race harassment claims.

Direct Race Discrimination

Direct race discrimination occurs where, because of race, a person (A) treats another (B) less favourably than A treats or would treat others (Section 13(1) of the Equality Act 2010). An employee claiming race discrimination needs to show that they have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different from their own. Race harassment occurs where A engages in conduct related to race and the conduct has the purpose or effect of violating B's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B (Section 26(1), EqA 2010).

The Acas guide advises that:

"Employers should be wary of prohibiting or limiting the use of other languages within the workplace unless they can justify this with a genuine business reason.”

The EAT Decision on Race Discrimination and Harassment

The EAT dismissed Mrs Kelly’s appeal. With regard to the Direct race discrimination claim, the EAT found that the actions of Covance had not occurred due to the fact that Mrs Kelly was Russian, they occurred as a consequence of her behaviour, further the actions were found to be reasonable in the circumstances i.e. there were security risks due to Covance’s activities in carrying out animal testing. The EAT found therefore that it was important that managers in Covance would be able to understand all conversations in the workplace and therefore Covance had a reasonable explanation for its actions and these were not related to Mrs Kelly's race or nationality. The EAT acknowledged that Mr Simpson had asked the other managers to pass on the same request and found that the same instruction would have also been given to a hypothetical comparator.

With regard to the harassment claim, it was found that although the instruction to not speak Russian would have been unwanted conduct, the EAT agreed that this was not related to Mrs Kelly's nationality, it was because of her suspicious conduct. The EAT also agreed that the instruction did not have the effect or purpose of violating Mrs Kelly's dignity, or creating an intimidating, hostile, degrading or offensive environment for her in the workplace.

Considerations for Employers

This case highlights a potential issue for employers who have employees whose first language is not English. These employees may wish to speak in their first language to other colleagues of the same nationality or by telephone to family and friends while at work but this can cause problems with other employees who do not speak that language as they may feel excluded by it. If an employer wishes to enforce a language requirement in the workplace and has good business reasons in order to justify it, they must take care to produce a policy that clearly sets out the requirements and ensure that the policy is applied consistently to employees of all nationalities.

This case also highlights that there is a difference between a requirement to speak English in the workplace and a requirement not to speak another language. A requirement to speak English in the workplace could risk a potential claim of indirect race discrimination if the employer’s request is not a proportionate means of achieving a legitimate aim. Whereas a requirement not to speak another language may be seen as less favourable treatment because of something intrinsically linked to an employee's nationality or national origins and therefore give rise to a direct race discrimination claim. There is no defense to a direct race discrimination claim. In order to defeat the claim, the employer obliged to show that its reasons were unrelated to the employee's nationality or national origins (as in Kelly)

Conclusion

This case shows that if an employer decides it is necessary to implement a language requirement in their work place, it would be advisable to implement a requirement to speak English (or another language) rather than than a requirement to not speak a particular language or languages. In doing so they will be able to avoid the risk of a direct discrimination claim of which there is no defense. 

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