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The Employment Appeal Tribunal has held that an Employment Tribunal was right to find that an employer did not discriminate against or harass an employee on grounds of race when it instructed her not to speak Russian in the workplace.

Mrs Kelly worked for laboratories which carried out, amongst other things, animal testing. As a result it had attracted the ire of animal rights activists and this had on occasion included the labs being infiltrated by protestors who had got jobs there so that they could obtain and expose information about the company.

The Claimant was a Russian national. During her probationary period her line manager became concerned about what he perceived to be strange behaviour which included often using her mobile phone at work, disappearing into the toilets with her phone for excessive periods and speaking on her phone in Russian (some readers may not think that the last of these is particularly unusual behaviour for a Russian.)

He became suspicious that she might be an activist and formed the view that it was important that the managers could understand everything she was saying. She was therefore instructed not to speak Russian in the workplace.

The Claimant objected that two Ukrainian colleagues also spoke in Russian at work. As a result her line manager passed instructions on for them to be subject to the same rule, although it appears that they were never actually told this.

The Claimant raised a grievance and ultimately resigned. She alleged that the instruction was inherently racially discriminatory and also amounted to racial harassment because it violated her dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for her.

Leeds Employment Tribunal dismissed her Claim. It held that she had not proven facts from which race discrimination could be found in the absence of a contrary explanation. Anyone speaking a language other than English would have been given the same instruction. The context was the suspicion that the Claimant was speaking in a different language to hide what she was saying and in those circumstances the reason for the instruction was not her race.

Mrs Kelly appealed to the Employment Appeal Tribunal, which upheld the original decision. Whilst it accepted that such an instruction was capable of amounting to race discrimination, the Tribunal in this case had been entitled to find that it did not on this occasion. Two non-Russian comparators had been treated the same and the reason for the conduct was not the Claimant’s race but the fact that the Respondent wanted to ensure that it knew what she was saying.

Although the Respondent won this time, employers should be very wary of following suit. As the case makes clear, an instruction to speak English can be unlawful discrimination and there were very particular facts here which meant that the employer’s actions were lawful. Any employer who is considering a ban on other languages needs to think carefully about what the justification for this is and take appropriate advice.              

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