Does the request for an Employee not to speak their own language whilst in the workplace constitute discrimination?

The case of Kelly v Covance Laboratories Ltd highlights this issue.

In the case of Kelly v Covance Laboratories Limited the Employment Appeal Tribunal (EAT) upheld the Tribunal judgment that the request for an employee not to speak her own language whilst at work was not discriminatory.

Background

The Claimant, who is of Russian national origin, commenced employment with the Respondent on the 3rd February 2014 as a Contract Analyst. The Respondent had some concerns with her behaviour and conduct from early on in her employment and an example given was the Claimant was often using her mobile whilst at work, going to the toilet for long periods of time and speaking on her mobile in Russian.

Part of the Respondent’s business involved animal testing and, as such, her line manager began to question whether she was an animal activist. They had previously experienced a backlash from animal activists who, on occasions, had subjected staff to violent assaults.

On 5 March 2014 the Claimant’s line manager asked the Claimant not to speak in Russian whilst at work as conversations needed to be understood by managers who spoke English. Instructions were also passed onto the line managers of two Ukrainian colleagues who also spoke Russian at work. The line manager also addressed other issues of conduct with her and, after two months of employment, it was proposed that she be moved onto formal capability. It was at this time that she raised a grievance against her line manager alleging complaints of race discrimination.

The Respondent took the decision to place the capability process on hold whilst the grievance was dealt with first. However, as the line manager and other senior members of staff would be out of the office, the Claimant would have been left unsupervised so the Respondent took the decision to suspend her whilst an investigation into her grievance was undertaken.

The grievance was investigated, the Claimant was informed that her grievance was not upheld and her appeal was also dismissed. The Claimant was then invited to attend a formal capability meeting a few days later.

In the meantime it transpired that the Claimant had been convicted of benefit fraud at the Crown Court and had been given a suspended sentenced. She was therefore invited to attend a disciplinary meeting. The day prior to this meeting she resigned and brought claims in the Tribunal alleging that the instruction not to speak Russian whilst at work was due to her national origin, race or sex and alleged harassment and victimisation.

EAT Decision

The EAT upheld the decision of the Tribunal reconfirming that the Claimant’s treatment was not connected to her nationality.  It accepted that an employee in similar circumstances, i.e. an employee speaking a language other than English, would have been treated the same way i.e. asked to speak English whilst in the workplace. .

Note

Employers should be careful if intending to rely upon this case. It can be differentiated from other businesses due to the potential difficulties they face from the public, the ethical issues that arise, the duty of care it has to its members of staff, the violence that it has on occasions experienced and the real need to infiltrate any internal communications that could have disastrous consequences to both business and members of staff.

For details of the full EAT judgment please click here.

Should you have any questions in respect of this article, or require any other employment law advice, then please do not hesitate to contact Nicola Cockerill or our Employment Law Team on 01733 882800.

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This article has been prepared for general interest and information purposes only; it does not constitute legal advice and should not be relied on as such. While all possible care has been taken in the preparation of this article, no responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by the firm or the authors.