Instruction Not To Speak Russian at Work Not Race Discrimination
An employer did not discriminate against an employee on grounds of race when it instructed her not to speak Russian at work.
An employer who instructed an employee not to speak Russian at work had not discriminated against her on grounds of race. Although language is intrinsically linked to nationality and so such an instruction can amount to unlawful discrimination on grounds of race, the reason for the instruction in this case was not the employee’s nationality/race. The employer carried out testing on animals and had received attention from animal rights activists in the past. The employee’s unusual behaviour at work led to concerns that she might be an animal rights infiltrator. This was why she had been asked not to speak Russian.
In Kelly v Covance, Ms Kelly who is Russian was employed by Covance, a company which carried out testing on animals. The company had received unwelcome attention from animal rights activists, including activists working undercover. Covance had concerns about Ms Kelly’s conduct and performance from early on in her employment. She frequently used her mobile phone at work and had long conversations in Russian on her mobile in the office toilets. Because of her suspicious behaviour, her manager instructed her not to speak Russian at work so that her conversations at work could be understood by English-speaking managers. She raised a grievance which was rejected and she claimed direct race discrimination.
The employment tribunal dismissed her claim and she appealed. The Employment Appeal Tribunal dismissed her appeal. The employment tribunal had been entitled to find that an instruction linked to an employee’s race or national origins can amount to unlawful direct discrimination, on the basis that language is intrinsically linked to nationality. However, establishing this intrinsic link only goes to shift the burden of proof to the employer who must show that race was not the reason it acted as it did. In this case, the reason for the instruction not to speak Russian was not because Miss Kelly was Russian but because of suspicions her employer reasonably had about her behaviour in the context in which it operated. Taken in the context of the company’s activities in carrying out animal testing and the security requirements arising from this, it was important that conversations in the workplace were capable of being understood by its English-speaking managers.
An instruction not to speak another language at work may amount to direct race discrimination. Employers should therefore exercise caution before issuing such an instruction. They will only be able to defend a claim if they can show that the reason for the instruction is not related to race/nationality at all. Although the employer was able to do that in the particular circumstances of this case, this is not an easy hurdle for employers to get over. There is no separate justification defence available to a direct race discrimination claim
Some employers may have introduced or may be considering introducing a requirement to speak English at work. Such a requirement may give rise to indirect race discrimination. However, an employer has the ability to defend indirect discrimination claims if it can show that the requirement is justified i.e. that it has a sound business reason for imposing the “English only” requirement and that it is a proportionate means of achieving its aim. Employers who have genuine business concerns about employees speaking another language at work are best advised to introduce a policy requiring them to speak English (which can potentially be justified), rather than issuing ad hoc instructions to specific employees not to speak in their native language (which cannot be justified). Before introducing it, they need to think very carefully about the business reasons for introducing the policy and how far it needs to go. For example, does it need to extend to all communications in the workplace or only those where customers are present and does it need to extend to personal communications during breaks (something which will be much more difficult to justify)?
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