In a recent case of Kelly v Covance Laboratories Ltd [2015], the EAT upheld a tribunal decision that an instruction to an employee not to speak Russian at work was not direct race discrimination or race harassment. The employer was found to have had a reasonable explanation for its action which was unrelated to the employee’s nationality or national origins.

Taken in the context of the employer’s activities in carrying out animal testing and the security requirements arising from this, it was reasonable for it to ask the employee, who had been acting suspiciously, to refrain from speaking in her native language in order that conversation in the workplace were capable of being understood by its’ English-speaking managers.

In this case, Mrs Kelly, who is Russian, was employed by Covance Laboratories Ltd as a contract analyst. Covance, who carry out animal testing, had previously received unwelcome attention from animal rights activists, including violent assaults on some of its employees and activists working undercover in the company in order to obtain information to further their campaign.

Covance had concerns regarding Mrs Kelly’s conduct and performance from early on in her employment. Mrs Kelly’s unusual behaviour included frequently using her mobile phone at work and having long conversations in Russian on her mobile in the office toilets. It considered her conduct sufficiently unusual for a new employee for her line manager, Mr Simpson, to wonder whether she was in fact an animal rights activist who had infiltrated the company as has happened previously. It was because of this suspicious behaviour that her manager asked her not to speak Russian at work Covance.

Initially the employment tribunal had found that an instruction linked to an employee’s race or national origins could amount to unlawful direct discrimination and harassment, however, they finally concluded that it does not. The EAT agreed with the employment tribunal’s final findings that in light of the reasons why the employer made the request – that they had reasonable suspicions about her behaviour in the context in which it had operated, would not amount to race discrimination. Taken in that context of Covance’s activities in carrying out animal testing and the security requirements arising from this, it considered it important that conversations held in the workplace were in English.

Employers should be wary of prohibiting or limiting the use of other languages within the workplace unless they can justify this with a genuine business reason. For example, telling two employees that they must speak English to each other outside of business operations when their first language is Russian could be potentially discriminatory; however, an employer might be able to justify this if other employees feel excluded or bullied because they cannot join in ‘in the course of their employment’.

This issue is highly topical for all businesses operating in the UK, but in particular, Japanese businesses in the UK as working in an environment where two or more languages are being spoken can give rise to such risks of discrimination.

For Japanese businesses the main risk is of non-Japanese employees taking issue with Japanese being spoken within business operations and outside of business operations, arguing that they feel left out or bullied, because they are not able to speak Japanese and employers should pay careful attention to this, not least because discrimination damages has no statutory cap
For further information, please contact Koichiro Nakada – Head of Japan Business Group (koichiro.nakada@lewissilkin.com) and Yoko Nakada - Senior Associate, Deputy Head of Japan Business Group (yoko.nakada@lewissilkin.com).
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