In a recent judgement the Employment Appeal Tribunal (EAT) considered whether a prohibition of an employee’s native language in the workplace amounts to race discrimination. The EAT ruling upheld the Employment Tribunal’s (ET) decision that a prohibition to speak a native language does not necessarily constitute race discrimination, as long as there is an acceptable alternative explanation.

In the case of Kelly v Covance Laboratories Ltd, the employee’s work involved testing products on animals, and her line manager suspected that she might be an anti-animal testing activist collecting inside information about the employer’s company to use against them. He noticed that she was speaking Russian, using her mobile phone, and spending excessive time in the bathroom facilities speaking Russian again. He believed that he and other English speaking managers should be able to understand what is being said and instructed Ms Kelly not to speak Russian. This instruction was also passed to the managers of other Russian speaking employees. Due to performance issues, the employer invited Ms Kelly to a formal capability meeting, and later to a disciplinary meeting, but she resigned in advance.

The ET held that the employee did not suffer race discrimination as she was not treated less favourably than her Russian speaking colleagues as they were given the same instruction, nor was she treated less favourably than a hypothetical employee, who spoke a native language and had suspicions raised about him.

Both the ET and the EAT were satisfied that the employee’s line manager would have prohibited any other employee who spoke a language other than English and had suspicions about them. The EAT agreed that the ET was entitled to prefer and accept the employer’s explanation over the employee’s allegations, and their decision was not flawed.

It is important to note that the EAT allowed that a reference to someone’s native language may be seen as relating to their race, but the judgment in this case depended largely on the circumstances in which the employee had been instructed not to speak Russian in the workplace, the context of the employer’s animal testing laboratory, and the (non-race discriminatory) suspicions he had.