A diverse workforce, where employees speak a number of different languages, is often an asset to an employer. However, where the knowledge of languages then spreads into use of different languages at work, this can lead to some difficult issues.

The Employment Appeal Tribunal had to consider one such issue in Kelly v Covance Laboratories Ltd UKEAT/0186/15. Ms Kelly was employed by Covance as a contract analyst. She was of Russian national origin. Part of the work undertaken by Covance involved the use of animals for testing products. This meant that it had been the subject of attention by those involved in the animal rights movement, and some of its employees had even been the victims of violent assaults.

During the first few weeks of Ms Kelly’s employment, she exhibited unusual behaviours, such that her line managers considered the possibility that she was an animal rights activist who had infiltrated the company – which had occurred in the past.

The behaviours included using her mobile phone at work regularly, disappearing into the bathroom at work with her phone for excessive periods, and speaking on her phone in Russian. As a result of these concerns, her manager informed the Claimant that she should not speak Russian at work. He felt that it was important that any conversations taking place in the workplace should be capable of being understood by English speaking managers, for security reasons.

Ms Kelly protested that two of her Ukrainian colleagues also spoke Russian at work; her manager therefore passed on similar instructions to their manager. Ms Kelly was also informed about a number of performance issues, which she apparently accepted.

However, at her two-month probationary appraisal, Ms Kelly was told that she would be moved onto a formal capability process. She therefore raised a grievance about her manager, alleging amongst other things, discrimination. Her grievance was not upheld and her appeal against that decision failed.

Thereafter, Covance became aware that Ms Kelly had been convicted of benefit fraud the year before, and she was therefore invited to a disciplinary hearing to consider the allegation that she had withheld information from Covance and had failed to disclose her criminal conviction. Ms Kelly tendered her resignation the day before that hearing was due to take place.

She then brought proceedings in the employment tribunal alleging that she had been discriminated against and harassed by her manager for being refused to speak her ‘native Russian’ whilst at work. She argued that her behaviour was not so unusual or unreasonable for her employer to have suspected her, and that to disallow her to speak her mother tongue whilst at work amounted to direct discrimination of her due to her nationality. She also argued that the instruction amounted to harassment of her in that it was unwanted conduct, which had the effect of causing her distress to the point where she was diagnosed with depression.

The tribunal dismissed her claims, and the EAT agreed with their decision. The tribunal considered that in her claim of direct discrimination, the comparator was someone who also spoke a language other than English in circumstances that gave their manager reasonable cause for concern. They considered that this was the reason why Ms Kelly had been given the instruction by her manager, and that he would have given the same instruction in respect of any other employee where those concerns arose. Therefore, he had not discriminated against Ms Kelly on the grounds of her nationality.

In order for her harassment claim to succeed, Ms Kelly had to show that the unwanted conduct related to her nationality. The tribunal accepted that the instruction was unwanted but concluded that the instruction was not given because of Ms Kelly’s nationality, but because of her suspicious behaviour. Therefore the link between the conduct and her nationality was not made out.

This case highlights that where employers give instructions that might appear to relate to an individual’s race or nationality, they must consider carefully the need for such an instruction and the reasons behind it. Covance successfully defended this claim because there was a clear, non-discriminatory purpose behind their instruction.

Had that not been the case, the decision may well have been very different.

Safia Tharoo, Barrister, 42 Bedford Row