But requiring the whole workforce to speak English may be justifiable

In the case of Kelly v Covance Laboratories, the Employment Appeal Tribunal (EAT) had to decide whether an employer telling an employee not to speak her first language at work amounted to direct race discrimination and racial harassment.

Direct race discrimination occurs where an employee is treated less favourably because of his or her race. Racial harassment occurs where an employer engages in conduct related to race that has the purpose or effect of violating an employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

Kelly, a contract analyst, was employed by a laboratory that conducted animal testing and which had been subject to unwanted attention from animal rights activists, including violent assaults on its employees. The laboratory had also unwittingly had activists working undercover in order to obtain information for their campaigns.

The employer became concerned about Kelly’s behaviour near the beginning of her employment when, among other things, she would spend excessive periods having conversations in Russian on her mobile phone in the toilets. Thinking she could be an activist who had infiltrated the company, her manager instructed her to stop speaking Russian so he could understand what she was saying. Kelly objected on the grounds that two Ukrainian colleagues also spoke Russian at work, so her manager instructed their managers to pass on similar instructions not to speak Russian either.

After a series of capability, grievance and disciplinary proceedings, Kelly resigned. She then brought claims of direct race discrimination and racial harassment.

An employment tribunal accepted that an instruction to an employee could amount to unlawful racial discrimination if it could be shown to be intrinsically related to his or her race. In this case, it stemmed from concerns about infiltrators, not Kelly’s race. She appealed.

The EAT dismissed the appeal. The employer had a reasonable explanation for instructing Kelly not to speak Russian. It was not because of her race, but because the company had a justifiable concern that she was an animal rights activist, an issue that was a real risk to the business. Therefore, it was important for managers to understand workplace conversations. The EAT also pointed out that other colleagues were given the same instructions and that hypothetical colleagues would be treated in the same way.

The racial harassment claim was also dismissed as, again, the instruction was not due to her nationality, but because of her suspicious conduct.

This case should not be treated as an authority for employers to prevent employees from speaking their first language at work in all circumstances, but it is a reminder that an employer must have a good reason for imposing a language requirement, and should ensure it adopts a consistent approach on this.

But what is a good reason for imposing a language requirement? Would staff morale and inclusiveness be enough to justify requiring all employees to speak English? How would such a requirement balance with employees’ basic right to speak in their own language? This wider issue was not discussed in the case but it is likely employers would be criticised if they didn’t have a good reason for imposing the ban - it’s doubtful that ‘inclusivity’ would be enough on its own.

This case also highlights the difference between a requirement to speak English and asking employees not to speak another language. The first of these could amount to indirect discrimination, as it is a policy that applies neutrally to all but will disadvantage non-English speakers. However, such a requirement will be allowed, even though it is discriminatory, if it is a proportionate means of achieving a legitimate aim.

Contrast this with a requirement not to speak Russian which, in this case, was considered could be direct race discrimination, for which there is no defence. An employer must prove the reason for the policy is unrelated to race to defeat a claim (which, in this case, it did). Ridiculous and confusing as it may seem, it is better for employers to have a requirement to speak English rather than not to speak another language, as that is likely to be indirect, rather than direct, discrimination for which the defence of “it’s a proportionate means of achieving a legitimate aim” will be available.

Paul Mander is a partner and head of employment and Kizzie Applebee is a trainee at Penningtons Manches LLP

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