Throughout the European Union there are numerous employees who will not speak the national language of the country as their first language. A recent Employment Appeal Tribunal considered whether the instruction by an employer to an employee to have all conversations within the workplace capable of being understood by the English speaking managers was race discrimination.
Covance Laboratories Ltd is a large multinational company operating a testing laboratory in Harrogate that employed Ms A Kelly, who is of Russian origin from 3 February 2014. From an early stage the employer had concerns about her conduct and performance. The work carried out by the employer involved the use of animals for testing products and it had been the subject of attention by those in the animal rights movement, which included violent assaults on some of its employees.
During the early weeks of Ms Kelly’s employment with the company, her conduct was sufficiently unusual for a new employee that her Line Manager, Mr Simpson, began to wonder whether she was, in fact, an animal rights activist who had infiltrated the company. He was aware of previous incidents where this had happened, with activists obtaining employment with the company to obtain information to use in furtherance of their campaign. The 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 of this, on 5 March 2014 her Line Manager, Mr Simpson, instructed her not to speak in Russian at work. He considered it important that any conversations taking place in the workplace should be capable of being understood by English speaking Mangers. When the Claimant objected that two of her Ukrainian colleagues also spoke in Russian at work he passed on similar instructions to their Managers. At the Claimant’s two month probationary appraisal, the Claimant was told that she was subject to a capability procedure, at this point she raised a grievance about Mr Simpson including complaints of race discrimination. The grievance was not upheld.
In the meantime the employee had contacted ACAS and on 13 May 2014 an ACAS officer contacted the employer which made it question whether she had knowledge of Employment Tribunal proceedings and whether or not she had brought proceedings before, so the company undertook a google search of her name. This disclosed that in October 2013, the Claimant had been convicted of benefit fraud at the Crown Court and given a suspended prison sentence. This was raised with Ms Kelly at the meeting on 16 May 2014, when she was told there would be a disciplinary hearing on 21 May 2014 to look into the allegation that she had withheld information from the employer and had failed to disclose her criminal conviction. On 20 May 2014 she resigned and brought Employment Tribunal proceedings for race discrimination.
The Employment Tribunal did not accept that the instruction not to speak English in the workplace was discriminatory. The Employment Tribunal considered that the correct comparator in this case was another employee speaking some language other than English in circumstances that gave Mr Simpson reasonable care for concern and this was the reason that caused him to give the instruction to the Claimant and he would have given the same instruction to any other employee where those concerns had arose. It held that Mr Simpson did not give the instruction because the Claimant was a Russian national but because of the suspicions that he had about her. That conduct did not, therefore “relate to” the Claimant’s national origin. The Claimant appealed to the Employment Appeal Tribunal but was unsuccessful.
Employers who employ those of a different national origin should always take professional legal advice when dealing with matters in the workplace.
Maxine Orr is a Partner in Worthingtons Commercial Solicitors, Belfast, specialising in employment law.