Employment and Pensions E-Bulletin
The EAT has recently affirmed a tribunal’s decision that an instruction to an employee not to speak Russian whilst at work was not race harassment or direct race discrimination - . Whilst the ban was shown to be reasonable in this case it was due particular facts unique to the employer. Other businesses should not assume that they would also avoid a finding of race discrimination if they imposed such a restriction on their staff.
Here, Mrs Kelly ("K") was a Russian employed by a laboratory (Covance) as a contract analyst. Covance conducted animal testing and had previously received unwelcome attention from animal rights activists including violent assaults and activists working undercover to obtain information. Covance considered K was acting suspiciously as she spent a long time speaking Russian on her mobile in the toilets. Her line manager had concerns she was an animal rights activist who had infiltrated the Company. Due to this concern he instructed her not to speak Russian at work and, following K complaining that two Ukranian employees also spoke Russian, a similar message was communicated to them. Due to continued concerns around her conduct and performance, at her two-month probationary review she was told a formal capability procedure would be commenced. She raised a grievance claiming race discrimination. This was rejected and the capability procedure started. It subsequently transpired that K had convicted benefit fraud. Before a disciplinary hearing could commence on this, K resigned and brought various claims that were dismissed by an employment tribunal. She appealed the decision that there had not been direct race discrimination (on grounds of nationality or national origin) and race harassment. The EAT dismissed the appeal. Covance had a reasonable explanation for its actions which were unrelated to race or nationality, namely, that it had justified suspicions in the context of security concerns. It was important for Covance that managers could understand what was being said as a result. The EAT also considered that Covance would have given the same instruction to a hypothetical comparator speaking any other language other than English in the circumstances. Also, whilst the instruction could be considered as "harassment" it was not due to her nationality and, on the evidence, it also did not have the purpose or effect of violating K's dignity or creating an intimidating, hostile or degrading environment.