The EAT has recently heard an appeal by a Russian employee who was asked not to speak her native language in the workplace. Her claim was for direct race discrimination and harassment.
In this instance, the EAT did not uphold her complaint, but the result could easily have been very different.
Covance Laboratories Limited, who employed Mrs Kelly – the claimant in this case – carry out animal testing, and need to maintain high levels of security to deal with problems they frequently encounter from animal rights activists. Covance had, so they said during these proceedings, required Mrs Kelly to stop speaking Russian because she had been acting suspiciously by making very long conversations on her mobile in Russian in the office toilets. At this point, Mrs Kelly objected that 2 of her colleagues who were Ukranian also spoke Russian and they had not been told to stop doing so. Covance immediately instructed them to stop speaking Russian as well.
Mrs Kelly, who is Russian, first needed to establish that the requirement not to speak her native language could amount to race discrimination at all. To do this, she relied on previous legal authority which held that language was “intrinsically part” of nationality and so overcame this hurdle
However, Mrs Kelly’s claim for direct discrimination did not succeed because the EAT considered that the real reason for the instruction was not her national origin, but rather the need for security, and this would have been the case for any non-English speaker. The harassment claim failed for this reason as well, because harassment needs to be on a discriminatory basis. Furthermore, the EAT also found that the instruction had not created an intimidating, hostile, degrading or offensive environment for Mrs Kelly at work, and therefore could not amount to harassment.
This case provides some welcome guidance in a difficult area, and also highlights the distinction between instructing employees that they have to speak English and requesting that they do not speak in their native tongue. A blanket policy requiring the speaking of English could be a better way for employers to proceed, because this would mean that employees would have to bring claims for indirect discrimination as opposed to direct discrimination. Indirect discrimination, as we have cited in previous cases can be justified by employers.
The ACAS guide on race discrimination deals with language speaking in the workplace, thus:
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. For example, telling 2 employees that they must speak English to each other outside of business operations when their first language is Russian could be potentially discriminatory. However, an employer might be able to justify this if other employees feel excluded or bullied because they cannot join in “in the course of their employment”.