Kelly v Covance Laboratories Ltd

An instruction restricting the language spoken at work may amount to direct race discrimination where it is linked to an employee’s race or national origins. Direct discrimination nevertheless requires a valid actual or hypothetical comparison under the Equality Act 2010. A tribunal may find no less favourable treatment where the same instruction was, or would have been, given to an employee in materially equivalent circumstances.

For harassment, unwanted conduct must be related to race and must have the statutory purpose or effect. Where the employer proves that an instruction was given because of legitimate concerns arising from the employee’s conduct and workplace context, rather than national origins, the required relationship to race is absent. A tribunal may also find that the conduct had no prohibited effect on the evidence.

The Claimant, a contract analyst of Russian national origin, appealed against the Leeds Employment Tribunal’s dismissal of her discrimination, harassment and other claims. The permitted appeal concerned an instruction from her manager not to speak Russian at work.

The employer operated a laboratory involved in animal testing and had experienced attention from animal-rights activists. The tribunal found that the manager’s concerns arose from the Claimant’s unusual conduct and from workplace-security risks. It also found that equivalent instructions had been given to the managers of two Ukrainian colleagues who spoke Russian, and would have been given to a comparable employee speaking another non-English language in similar circumstances.

The central issues were whether the instruction was direct discrimination because of Russian nationality and whether it was harassment related to race.

1. Appeal dismissed. The Employment Tribunal was entitled to reject the direct-discrimination claim. An instruction not to speak a particular language can potentially constitute direct discrimination where it is linked to race or national origins, consistently with Dziedziak v Future Electronics Ltd UKEAT/0270/11. That possibility did not determine this appeal.

2. The tribunal permissibly found that the two actual comparators had been given the same instruction through their managers. It also correctly applied section 23 of the Equality Act 2010 by constructing a hypothetical comparator: an employee speaking another non-English language who gave the manager reasonable cause for concern. The tribunal was entitled to find that such an employee would have been treated in the same way.

3. Even if a reference to an employee’s native language shifted the burden of proof, the employer had discharged it. The accepted explanation was that managers needed to understand workplace conversations because of justified concerns about the Claimant’s conduct, viewed against the security risks faced by the business. The instruction was therefore not because of race or national origins.

4. The harassment claim also failed. Applying the three elements identified in Richmond Pharmacology v Dhaliwal [2009] ICR 724, the tribunal was entitled to find that the unwanted instruction was not related to race, but to the manager’s concerns. Alternatively, its finding that the instruction had neither the required purpose nor effect was not unsafe. The medical evidence did not specifically address that instruction, whereas the tribunal could rely on the Claimant’s contemporaneous email response.

• Employment Appeal Tribunal: dismissed the Claimant’s appeal against the dismissal of the relevant direct race-discrimination and harassment claims.
• Leeds Employment Tribunal: Employment Judge Burton sitting with members dismissed the Claimant’s claims of race and sex discrimination, harassment and victimisation in a reserved judgment sent on 13 March 2015.