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Stopping employees speaking their first language at work could be race discrimination

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.

Tribunal
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.

EAT
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.

 

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.

Tribunal
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.

EAT
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.

 

Added: 18-01-2016
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