In Kelly v Covance Laboratories Ltd, the employer operates a testing laboratory, part of which involves the use of animals for testing products. Mrs Kelly (K), who is of Russian national origin, was employed as a contract analyst. Concerns arose into K’s conduct and performance which was sufficiently unusual for her line manager, Simpson (S), to wonder whether she was in fact an animal rights activist, an issue which had arisen in the past.  

K’s behaviour included often using her mobile phone at work, disappearing into the bathroom with her phone for excessive periods and speaking on her phone in Russian. As a consequence, S instructed K not to speak in Russian at work because he considered it important that any conversations taking place in the workplace should be capable of being understood by English speaking managers. S also passed on the same instruction to the managers of two of K’s Ukrainian colleagues also sometimes spoke in Russian at work.

An employment tribunal dismissed K’s claims of direct race discrimination and/or harassment related to her race (both based on her national origin) and the EAT upheld the tribunal’s decision.

On the issue of direct discrimination, the same instruction to not speak Russian had been given to K’s named comparators and would have been given to any other employee not speaking English in the same circumstances that gave the employer cause for concern. Therefore, in like-for-like circumstances another person who was not speaking English was, or would have been, treated in the same way.  In any event, there was an explanation for the instruction other than race, i.e. the importance of conversations within the workplace being capable of being understood by English-speaking managers, together with K’s unusual behavior and the fear of animal rights infiltration.

Turning to harassment, the reason for the instruction was not because K was a Russian national, but because of suspicions about her behavior. Furthermore, there was no evidence that the instruction had the purpose or effect of violating K’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her.

The case provides a good illustration of how the concept of direct discrimination operates in circumstances where an employer has a legitimate, objective business reason for requiring people to speak a designated language. If the requirement is clearly communicated, together with the reasons why, and is applied to all employees, regardless of their nationality, then everyone is being treated in the same way. However, such a requirement could amount to indirect discrimination if it disadvantages a group of people of a particular nationality/national origin and the requirement cannot be justified as a proportionate means of achieving a legitimate aim. Employers also need to be conscience of the fact that direct discrimination, other than because of age, cannot be justified.

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