Is a requirement to speak English at work discriminatory?

The Employment Appeal Tribunal (EAT) has held that in the circumstances where an employer was concerned about possible infiltration by animal rights activists, it was not discriminatory to have a requirement to speak English at work.

The Respondent operates a testing laboratory in northern England. Part of its work involves testing on animals and as a result it has been the subject of attention from those involved in the animal rights movement. So much so that in the past, employees of the Respondent have been subject to violent assaults.

Mrs Kelly is Russian born and was a relatively new employee of the Respondent. The tribunal heard that from an early stage, concerns had arisen relating to her conduct and performance. Her manager had been worried that she may have been an animal rights activist who had obtained employment in order to infiltrate the Respondent and further her campaign. She often used her phone at work, disappearing to the bathroom for long periods with her phone and spoke on her phone in Russian. As a consequence she was instructed not to speak Russian at work.

After Mrs Kelly’s appraisal the Respondent instigated a formal capability process as it continued to have concerns about a number of areas of Mrs Kelly’s performance and conduct. This ultimately led to Mrs Kelly’s resignation. She brought proceedings in the employment tribunal for race discrimination and harassment relating to the instruction not to speak Russian at work.

An employment tribunal found that it was possible for the Respondent’s instruction not to speak Russian at work to constitute an act of discrimination. However, the tribunal found that the Respondent would have given the same instruction to “some other employee speaking some language other than English that gave [the Respondent] cause for concern”. The EAT agreed, in the context of the Respondent’s involvement in animal testing, the Respondent’s actions were not discriminatory.

The facts in this case are unusual. The tribunal’s decision, upheld by the EAT was that the Respondent’s actions resulted from their concerns that Mrs Kelly may have been an animal rights activist. In the circumstances, restricting employees from speaking a language other than English did not amount to discrimination. Equality and Human Rights Commission guidance states that in some circumstances (for reasons of health and safety or to prevent certain employees from feeling excluded) a requirement to speak English can be justified. However, the guidance makes it clear that it will not usually be justifiable to prevent an employee using their native language during breaks or otherwise outside of working time. A copy of the guidance can be found here, see section 17.48 on page 251.

Kelly v Covance Laboratories Ltd [2015] EAT

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