Can you speak English please?
The recent Employment Appeal Tribunal (EAT) decision in Kelly v Covance Laboratories Ltd UKEAT/0186/15/LA revisited the question as to whether an employer can instruct employees not to speak in a foreign language at work.
The EAT had decided previously, in the case of Dziedziak v Future Electronics Ltd UKEAT/0270/11, that the employee’s Polish language was “intrinsically part” of her nationality and therefore the employer’s instruction not to speak Polish at work would potentially give rise to direct race discrimination.
In Kelly, the Russian born Claimant brought a claim for race discrimination and harassment against her Employer after she was instructed not to speak her native Russian in the workplace. The Claimant had recently joined the Respondent as a contract analyst. Her employment was subject to a six month probationary period.
The Respondent is a large multinational company that operated a laboratory in North Yorkshire where some of its products were tested on animals. The Respondent had previously been subject to negative attentions of those involved in the animal rights movement, which included violent assaults on its employees. The Claimant’s unusual behaviour during her first few weeks of employment led her line manager to suspect that she could possibly be an animal rights activist. The unusual behaviour that gave rise to the suspicions was that the Claimant was often on her mobile phone at work speaking in Russian, and disappearing to the toilet for excessive periods with her mobile phone.
The Employment Tribunal (ET) dismissed the Claimant’s race discrimination and harassment claims. It held on the facts that her employer’s instruction not to speak Russian at work could not be attributed to her national origin, race or sex. The instruction was given to the Claimant due to the concerns about her behaviour, not because she was Russian. The ET remarked that the correct hypothetical comparator would be another Employee speaking a language other than English whose behaviour raised similar concerns to those of the Claimant. They held that the Employer would have given the same instruction as with the Claimant and as such, no discrimination was found.
In relation to the harassment claim, the Employment Tribunal acknowledged that the instruction not to speak Russian was unwanted conduct, but were not satisfied that it related to the Claimant’s race or origin. They found that the instruction did not have the effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
The Claimant appealed to the EAT.
The Employment Appeal Tribunal upheld the ET’s reasoning. It agreed that the instruction was given not because the Claimant was Russian but because, looking subjectively, concerns had been raised about her behaviour. This satisfactory reason was enough for the ET to dismiss both the discrimination and harassment claims. As such, the case of Dziedziak in which the instruction not to speak Polish at work was intrinsically linked to the employee’s national origin, was differentiated.
Interestingly, the EAT stated that were an employer to make a rule that only English is to be spoken at the workplace, they would be open to claims of indirect race discrimination.
It seems that the Tribunal has taken a step back from the decision in Dziedziak and opened the door for employers to restrict the use of an employee speaking a foreign language at work provided a satisfactory explanation is given which is unrelated to the Employee’s national origin or race. However, it remains to be seen how wide the door has been opened and how much leeway the Tribunal will give in assessing whether the Employer’s reasoning is satisfactory.
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.