It can be, depending on the circumstances.
In the recent case of Kelly v Covance Laboratories Ltd, an instruction not to speak Russian at work was not direct race discrimination or harassment. However, the circumstances of the case were unusual.
Mrs Kelly is Russian and was employed by Covance Laboratories. Covance carry out animal testing and had previously been subjected to unwelcome attention from animal rights activists.
From the very start of her employment, Covance had concerns about Mrs Kelly’s conduct and performance. She frequently used her mobile phone at work and spent long periods of time speaking in Russian on her phone in the toilets.
Mrs Kelly was instructed not to speak Russian while at work so that her conversations could be understood by her English-speaking managers. After she complained that two Ukrainian colleagues also spoke Russian at work, they received the same instruction not to do so.
Covance started formal capability proceedings after their concerns about her conduct and performance continued. She raised a grievance claiming race discrimination and ultimately resigned. She then raised claims for direct race discrimination and racial harassment.
An instruction linked to an employee’s race or national origin can amount to unlawful direct discrimination and harassment. However, here Covance had a reasonable explanation for its actions which was not related to race or nationality. The instruction not to speak Russian was based on suspicions it had that Mrs Kelly might be an animal rights activist who had infiltrated the company (something which had happened previously). The tribunal and Employment Appeal Tribunal also took into account the fact that other employees were given the same instruction about not speaking Russian at work. Both her claims failed.
The facts of this case are unusual. In most circumstances, it will be difficult to justify imposing a requirement to speak only English in the workplace. For example, in another recent tribunal case, a Polish employee claimed racial harassment after being told to speak English when at work. The company’s claim that the rule was introduced for health and safety reasons was rejected and the employee was awarded £5000.
Guidance from ACAS states that employers should have a genuine business reason before prohibiting or limiting the use of other languages in the workplace, suggesting that it might be justifiable if other employees feel excluded or bullied.
Please get in touch if you would like to discuss any of the issues raised by this case in more detail.
On January 18, 2016