Race Discrimination and Language Requirements

The Employment Appeal Tribunal has upheld an Employment Tribunal’s decision that it was not direct race discrimination or race harassment for an employer to instruct an employee not to speak in Russian whist at work.

In the recent case an employer had some concerns over the unusual behaviour of an employee. She often used her mobile telephone at work, having lengthy conversations in Russian in the toilets. The employer was particularly concerned due to the fact that, as a company undertaking animal testing, it had been subject to unwelcome attention from activists and the employer suspected that the employee in question was in fact an activist herself. The employer instructed her not to speak in Russian at work so that managers who were English-speaking could understand her conversations. The employer gave a similar instruction to two Ukrainian employees.

The employer’s concern about the employee’s performance continued and it informed her that a formal capability procedure would commence. The employee raised a grievance against her manager and the employer investigated the same and rejected the grievance, requesting her attendance at a formal capability meeting. It came to light that the employee had been convicted of benefit fraud and had been given a suspended prison sentence and the employer invited her to a disciplinary hearing which would consider her failure to disclose her conviction.

The day before this hearing the employee resigned and thereafter brought claims in the Employment Tribunal, alleging constructive dismissal and harassment. Such claims were dismissed and the employee appealed.

The Employment Appeal Tribunal dismissed the appeal; they did not find fault with the employer’s conduct; they had a reasonable explanation for requesting that the employee did not speak Russian and this reason was not linked to her race or nationality. The EAT took into account that other employees speaking a language other than English were given similar instructions.

On the harassment claim, the EAT held that the tribunal had been correct in holding that the instruction was not related to the employee’s nationality; the instruction was given because the manager was suspicious of her conduct. The instruction did not have the effect or purpose of violating her dignity or creating an intimidating, hostile, degrading or offensive environment for her in the work place.

The case is important for many employers who employ individuals who speak languages other than English as their mother tongue, particularly when more than one employee speaks the same language. These individuals will clearly prefer to speak to these colleagues and family and friends whilst on the telephone at work in their first language.

There are some important notes prepared by ACAS which are useful for employees faced with issues in this area and employers need to take care when taking steps to prevent employees speaking a given language at work.

If the employer has good reason and feels that it is necessary for there to be a requirements surrounding language, the policy must be set out clearly for all employees and must be applied consistently to employees of all nationalities to avoid successful claims. This case emphasises the difference between an employer requiring employees to speak English in the workplace as opposed to them requiring them not to speak another language.