Instruction to Speak English Not Discriminatory

In Kelly –v- Covance Laboratories Ltd, the EAT was asked to consider an appeal from a Russian born claimant who argued that she had been subjected to discrimination and harassment on the grounds of her race when she was instructed not to speak Russian in the laboratory where she worked.  

Ms Kelly started working at a laboratory involved in animal testing. However, her conduct was viewed as suspicious by her manager who was concerned she may be an animal activist who had infiltrated the laboratory – as had happened previously. Ms Kelly’s suspicious behaviour included leaving her work station for long periods at a time and conducting telephone conversations in Russian. Accordingly, Ms Kelly was instructed not to speak in Russian whilst at work. Initially, Ms Kelly failed to challenge the instruction but she was later subjected to capability proceedings regarding her performance. At this point she submitted a formal grievance raising complaints of race discrimination. 

The grievance was investigated and rejected (it transpired that Ms Kelly’s manager had also issued a similar instruction to two Ukrainian employees) and Ms Kelly was invited to attend a formal capability hearing. However, before that hearing could take place the laboratory discovered that Ms Kelly had been convicted of benefit fraud and given a suspended prison sentence. In these circumstances, she was invited to a disciplinary hearing to consider an allegation that she had withheld this information from her employer. Ms Kelly resigned and issued claims for race discrimination and harassment. 

The EAT agreed with the original Tribunal’s decision that the instruction not to speak Russian was issued because of concerns about her conduct at work and not because of her race. The EAT found that a comparator speaking any other language apart from English would have been treated in the same way and dismissed her appeal.

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