Instruction not to speak Russian at work was neither discrimination nor harassment

David McRae
Managing Director
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The Employment Appeal Tribunal (EAT) has decided that an instruction given to an employee not to speak Russian at work was not direct race discrimination or racial harassment.

In this case, the employer, who carried out animal testing, gave an instruction to the employee not to speak Russian at work. The employer explained that this instruction was given as the employee, who they believed had previously been acting suspiciously, was often speaking on her mobile telephone in her native language.

Due to the employee’s alleged suspicious behaviour, and security requirements arising from the nature of the employer’s activities, the employer instructed the employee not to speak Russian at work. The employer explained that the reason for this was so that the employee’s conversations could be understood by English-speaking managers.

The employee objected to the instruction on the basis that two Ukranian colleagues also spoke in their own language at work. Following this objection, the employer gave the same instruction to the Ukranian employees.

In this case, the EAT was satisfied that the employer had a reasonable explanation for its actions and concluded that the instruction was not related to the employee’s race or nationality.

The EAT took into account that the employer had asked the Ukranian employees not to speak Russian at work. It also found that the employer would have given the same instruction to any other hypothetical comparator, namely another employee speaking a language other than English in circumstances that gave it cause for concern.

With regard to the harassment claim, the EAT was satisfied that the instruction was only given because the employer was suspicious of the employee’s conduct. The EAT also found that the instruction did not have the effect or purpose of violating the employee’s dignity, or creating an intimidating, hostile, degrading or offensive environment for her at work, and so the claim failed.

A different division of the EAT has previously come to the conclusion that instructions given to employees not to speak in their own language at work can amount to direct race discrimination, although the previous decision was influenced by the fact that employees speaking Italian were permitted to continue doing so during their breaks, whereas employees speaking Polish were not.

Many employers will have employees for whom English is not their first language, and who wish to speak their first language at work. ACAS guidance advises that “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.”

If an employer has a good business reason to justify a particular language being spoken at work, it should ensure that it has a clear policy in place, that the requirements of the policy are set out, and that it is consistently applied.

It is also recommended that specialist legal advice be taken before implementing any ‘speak English only’ policy in the workplace.

A link to the case is available here:

http://www.bailii.org/uk/cases/UKEAT/2015/0186_15_2010.html

Topics: EAT, Employment Appeal Tribunal