In recent years there has been a much-increased tendency for foreign workers and non-nationals to gravitate to particular types of work and workplaces. Admittedly limited analysis suggests that migrants from the European Union tended initially mainly to take factory jobs, seasonal farm work and cleaning jobs. More recently there has been a notable diversification into retail and hotel and catering work. For non-European migrants, typical jobs include doctors, chefs, nurses, IT professionals and scientists. This is no great surprise taking into account the requirement for higher professional and academic qualifications for workers arriving from outside the EU.
One consequence of the gravitation to particular work types is that it is often the case that workforces can include particularly high representation from one nationality or ethnic group. For example I expect that many of you will have heard hotel staff speaking to each other in a foreign language (often eastern European). This can present particular problems for employers since it has the capacity to encourage cliques and it is likely to be much more difficult to manage if a manager does not speak the same language as that routinely used by those being managed. There is also the risk of those who are not in the main language group being marginalised, albeit not in a way that is likely to be capable of protection under discrimination law as it stands if, say, the minority language in use is English.
One way in which employers have tried to address the problem is by requiring only English to be spoken by all staff at all times when on duty. There have been press reports about such requirements and the frequently expressed view that such a rule might be seen as indirectly discriminatory since it would be more difficult (and in certain circumstances impossible) for those for whom English is not their native language to comply.
The issue has now been considered by the Employment Appeal Tribunal in the case of Kelly v Covance Laboratories Limited. Mrs Anna Kelly is of Russian national origin and commenced employment with Covance as a contract analyst working in a testing laboratory in Harrogate in February 2014. The work duties included animal testing and therefore attracted the attention of the animal rights movement. In the first few weeks of her employment Mrs Kelly exhibited odd behaviour which suggested that she might be an animal rights infiltrator (there had been recent examples of such infiltration at the time). Examples of her odd behaviour included frequently using her mobile phone in work, often disappearing into the bathroom with her phone for excessive periods and speaking on her phone in Russian.
As a result, in early March 2014, she was instructed by her employer not to speak in Russian when at work. She objected, pointing out that two Ukrainian employees frequently spoke in Russian when at work (although this was not enforced). As a result they were also instructed not to do so. Other issues concerning conduct and performance were raised with her but she appeared to respond positively to these. However, problems continued and at her two months’ probationary appraisal she was told that she would be moved into a formal capability process. She raised a grievance against her manager, including allegations of race discrimination. The grievance was investigated and rejected and an appeal was unsuccessful, following which she was asked to attend a formal capability meeting in mid May. Prior to the meeting she contacted ACAS and, in turn, an ACAS officer contacted the employer. This prompted the employer to make further enquiries about her and a Google search disclosed that in October 2013 she had been convicted of benefit fraud in the Crown Court and was given a suspended prison sentence. She was asked at the meeting on 16 May why this had not been disclosed. On 20 May she handed in her resignation but subsequently brought Employment Tribunal proceedings including allegations of discrimination based on national origin, race and sex.
The Employment Tribunal was clear in its rejection of the complaint concerning the instruction to speak English. As reported in the EAT judgment:
…there was no reason to believe that another employee, of a different national origin to the Claimant but seeking to speak a language other than English in the workplace, would have been treated any differently. The Claimant relied on the fact that her two Russian speaking Ukrainian colleagues had not been subjected to the same instruction, but the ET found that Mr Simpson had told their line managers to impose a similar prohibition on them, albeit that instruction had not been carried out. The ET observed:
“47. … it would be a very strange thing if Mr Simpson were to discriminate against a Russian national in relation to the use of that language and treat a Ukrainian national more favourably in that regard. …”
With reference to national origins while Russian was her mother tongue the test was a subjective one as to why a person acted as they did. In this case the instruction was given not because she was a Russian national but because of the suspicions that the manager had about her. Accordingly the conduct did not “relate to” her national origins. Mrs Kelly appealed to the EAT.
Her Honour Judge Eady QC noted that the Employment Tribunal had all relevant evidence before it and Mrs Kelly had put her case fully and clearly. Judge Eady was also satisfied that the Employment Tribunal was entitled to reject all the arguments out forward by Mrs Kelly, as it did.
It was notable that, first, the case had raised a question of direct comparison (the two Ukrainians), which was rejected on the facts. Second, the Employment Tribunal was satisfied that the employer had provided a good non-discriminatory explanation for issuing the instruction, which meant that Mrs Kelly’s claims would fail.
The case serves to demonstrate that there can be circumstances in which an instruction not to speak in a particular (including native) language but it should not be seen as providing carte blanche for employers. It appears that Mrs Kelly had no difficulty in speaking in English (not least demonstrated by the fact that she represented herself against Counsel in the EAT) but there remains the risk of indirect discrimination which I mentioned in the introduction to this report. Above all, the employer had a clear, non-discriminatory, explanation for its actions. Simply introducing a language ban or the mandatory use of English without having such an explanation would, in my view, remain very risky.