Thanks to Ed McFarlane of Deminos HR for preparing this case summary
Was an instruction to a non-native English speaker not to speak in her native language at work discriminatory?
No, held the EAT in Kelly v Covance Laboratories Ltd, dismissing the appeal.
The Russian-born Claimant alleged that she had been subjected to discrimination and harassment on the grounds of race or national origin. The Claimant was instructed not to speak Russian at a laboratory involved in animal testing, her conduct in leaving her work station and talking on her phone gave the Respondent cause for concern that she might be an animal rights infiltrator. The Respondent's language policy operated in the context of the Respondent's requirement for its English-speaking managers to understand conversations for security reasons.
On the facts found by the employment tribunal, the policy of requiring only English to be spoken at work was not applied because of the Claimant's race or national origin, but her behaviour at work in the context of that particular working environment, it was neither direct discrimination nor harassment, and there was no evidence that the instruction had caused any harassment.
The EAT held that the employment tribunal had properly directed itself in law and made permissible findings on the facts. Whilst it can be direct discrimination or harassment to ban the use of a foreign language at work, a comparator speaking any other language apart from English would have been treated in the same way as the Claimant.
The EAT rejected an argument, seeking to follow Dziedziak that there was an intrinsic link between the instruction and the Claimant's national origin as she had been instructed not to speak in her 'native Russian', the Respondent's explanation demonstrated no link to national origin in the complained of treatment.