Can an employer insist that its employees speak only English at work? Yes, said the EAT in Kelly v Covance Laboratories Limited.
Kelly, a Russian national, was employed by a company engaged in controversial animal testing which had been targeted by animal rights activists in the past. Activists had previously worked undercover for the company in order to gain inside information about their practices. Kelly’s behaviour at work had been odd: she regularly used her mobile phone to have long conversations in Russian during worktime and spent lengthy periods in the company toilets doing the same. Her line manager grew suspicious that she was actually an undercover activist and resultantly ordered her not to speak Russian at work so that her English-speaking managers could understand her. Notably, the same instruction was also given to two Ukrainian employees.
The Equality Act 2010 defines ‘race’ as including colour, nationality and ethnic or national origins, and native language falls within that definition. Kelly brought a claim for race HR which was dismissed by both the Employment Tribunal and EAT. The reason for the instruction was not because Kelly was Russian, but was because of the reasonable suspicion surrounding her behaviour. Furthermore, Kelly’s comparators – the Ukrainian employees – had been treated in the same way, as would a hypothetical comparator speaking any other language.
This judgment is unusual and very fact-specific. Language is intrinsic to a person’s national origin meaning an unjustified prohibition on using native language may well amount to HR. In the 2012 case of Dziedziak v Future Electronics Ltd the employer was found to have directly discriminated against an employee when management prohibited him from speaking Polish at work. Many companies in the UK now benefit hugely from having an ethnically diverse workforce. Multi-cultural and multi-lingual workplaces are undoubtedly a good thing, but employers must be aware of situations whereby employees – including those who are English-speaking – are made to feel excluded or bullied as a result. Language issues must be handled tactfully and proportionately in order to avoid potentially costly HR claims.