Kelly v Covance Laboratories Ltd

An employer's instruction that an employee must not speak a particular language at work can amount to direct discrimination or harassment where it is linked to the employee's national origin.

Where language is intrinsically linked to nationality that link shifts the evidential burden to the employer to provide a non-discriminatory explanation.

A properly constructed comparator must match the relevant circumstances, including the reasons that gave rise to the instruction.

Harassment requires conduct related to the protected characteristic and the required purpose or effect; an alternative non-discriminatory explanation will defeat liability.

The claimant, a person of Russian national origin, worked for the respondent laboratory and was instructed not to speak Russian at work.

The Employment Tribunal dismissed claims of direct race discrimination and harassment because it found the instruction would have been given to any employee in similar circumstances and that there was a non-discriminatory explanation.

The claimant appealed to the Employment Appeal Tribunal on two issues: whether the language instruction could amount to direct discrimination because of nationality and whether it could amount to harassment related to race.

The EAT was asked to consider the correct comparator approach and the effect of an intrinsic link between language and nationality on the burden of proof.

1. The appeal is dismissed. The Employment Tribunal's decision was permissibly open on the facts and law. (Disposition.)
2. The court accepted that an instruction to refrain from speaking a particular language can, if linked to national origin, amount to direct discrimination or harassment. This is consistent with the reasoning in Dziedziak v Future Electronics Ltd. (paras [23]; [26].)
3. Where language is intrinsically linked to nationality the evidential burden may shift to the employer. The shift does not preclude the employer from adducing a non-discriminatory explanation. The ET here considered and accepted such an explanation and was entitled to do so. (paras [30]; [31].)
4. Comparison must be of cases with no material difference in circumstances under section 23 Equality Act 2010. The correct comparator here was another employee speaking a language other than English in circumstances that gave the manager reasonable cause for concern. The ET permissibly found no actual comparator in the same circumstances and that a hypothetical comparator would have been treated the same. (paras [20]; [28]; [29].)
5. On harassment the ET correctly asked why the instruction was given. It found the reason was the manager's suspicions about the claimant's conduct, not her nationality. Alternatively, the ET permissibly found there was no evidence that the instruction had the requisite purpose or effect. (paras [21]; [31]; [32].)
6. The ET's alternative reliance on contemporaneous evidence of the claimant's reaction and timing of medical evidence was open to it and does not render the conclusion unsafe. (para [32].)
7. Result: the EAT dismisses the appeal. No remittal. Costs and ancillary orders were not altered. (para [33].)

• Employment Appeal Tribunal: Appeal dismissed by HHJ Eady QC (sitting alone) - [2015] UKEAT 0186_15_2010 (20 October 2015).
• Employment Tribunal (Leeds): Reserved Judgment dismissing claims of race and sex discrimination, harassment and victimisation; judgment sent 13 March 2015 (Employment Judge Burton sitting with members).