A language issue
In the case of Kelly v Covance Laboratories Limited, the employment appeal tribunal held that an instruction to an employee not to speak their native language at work was not an act of direct race discrimination or harassment on the grounds of race.
Although it accepted that language is inherently part of nationality, the employer in this case had a clear reason for giving the instruction which was unrelated to the employee’s nationality and which did relate to a genuine and reasonably held concern of the respondent.
The claimant in this case was Russian in origin and was instructed by her employer not to speak Russian whilst she was working in a laboratory where animal testing was being conducted. At the outset of the claimant’s employment, her employer considered her behaviour unusual and had suspicions that she may be an activist; for example, she would frequently use her mobile phone at work and would have lengthy conversations in Russian in the staff toilets.
As a result of her manager’s instruction to not speak Russian whilst at work, the claimant raised a grievance that was rejected and, ultimately, disciplinary proceedings were initiated against her. The day before the disciplinary hearing was due to take place the claimant resigned and brought various claims that were dismissed by the employment tribunal. She appealed the decision in respect of her claims for direct race discrimination on the grounds of nationality or national origin and racial harassment.
The employment appeal tribunal dismissed the appeal and upheld the decision that the claimant had not been discriminated against. Specifically it held that, while banning the use of a foreign language at work can amount to discrimination, her employer had provided a satisfactory, non-discriminatory reason for the instruction to the claimant. The employment tribunal had been satisfied that a non-Russian employee who had been behaving suspiciously would have been treated in the same way.
In this particular case, the employer had good reason to impose the requirement of only speaking English on all its employees: there was a specific threat to security at its laboratory, due to the nature of the work, and the employer could therefore clearly show the policy was not down to the claimant’s nationality per se. It had shown that it had a non-discriminatory reason for behaving as it did.
Impact of decision
It is important to be aware that each case is entirely different and this decision should not be taken as authority that it will always be possible to instruct employees to not speak their native language in the workplace. Before imposing such an instruction, careful thought and consideration must be applied as to whether there is a good business reason for doing so and whether an employer company would treat another employee speaking a different foreign language in the same way.
Carley Kerrs-Walton, Solicitor, Napthens LLP – QCS Expert Employment Law Contributor