Introducing a policy requiring employees to speak only in English at work and preventing them from speaking in their mother tongue can amount to direct race discrimination on the grounds of nationality. However, in light of two recent cases, Kelly v Covance Laboratories Limited and Konieczna v Whitelink Seafoods Ltd, it can depend on an employer’s reasons for implementing such a policy in determining whether it would amount to race discrimination.
In Kelly v Covance Laboratories Limited, the claimant was working at an animal testing laboratory. Her line manager had concerns about her conduct at an early stage in her employment, as she would go to the bathroom for long periods with her phone and speak only in Russian during those calls. Due to the company’s history with animal rights activists, given the nature of their work, and the claimant’s unusual behaviour, her line manager was concerned that she might be an animal rights infiltrator. This had happened before.
As a result of this, her line manager instructed her not to speak Russian at work as he considered it important that any workplace conversations could be understood by English speaking managers. The claimant objected to this as two other employees also spoke Russian at work. The line manager then passed on a similar instruction to their line managers. The company raised other disciplinary issues with the claimant with regard to her conduct but she resigned and brought a race discrimination claim. Her claim was rejected by the Employment Tribunal and her appeal was dismissed by the Employment Appeal Tribunal (EAT). The EAT affirmed the tribunal’s decision that the company could explain and justify why the policy was introduced. The policy and the reasons for introducing it did not relate to nationality or national origins. Given the history of animal rights activists and previous attacks on their employees due to the nature of their work, the company could show that such a requirement was necessary and reasonable in the circumstances.
In contrast, in the case of Konieczna v Whitelink Seafoods Ltd, the Employment Tribunal found that the claimant had been the subject of racial harassment after being told not to speak Polish at work. The claimant alleged that a number of derogatory racial comments had been made about being Polish and that she was told that the company should only employ English speaking workers going forward. There were a large number of Polish workers employed by the company, many of whom did not speak English, and the implementation of a language at work policy was detrimental to them. The company tried to argue that the reason for introducing the policy was for health and safety reasons, but the Employment Tribunal found that implementing such a policy where some employees could not speak English at all was more likely to create a greater health and safety risk rather than reduce it. The company could not justify their reasoning for introducing the policy and therefore had subjected the claimant to racial harassment. The claimant had brought a claim for race discrimination, but because she spoke English, she was not disadvantaged by the policy and race discrimination could not be established.
These decisions remind employers that if they wish to introduce policies regarding the language to be used at work, they must have a justifiable explanation as to why the policy is necessary and have fully considered the reasoning behind the policy before implementation, as there is a risk that the policy could amount to direct race discrimination.
If you have any questions on any of the issues raised in the above article, please contact Lyndsey Saunders