Can you force your employees to speak only in English in the workplace?

Yes, in certain circumstances, according to the EAT in Kelly v Covance Laboratories Limited.

Covance Laboratories Ltd (Covance) was involved in animal testing, which had resulted in attacks on the company and its staff by violent activists, including activists working undercover within Covance.

Mrs Kelly was employed as an analyst. Covance had concerns regarding her performance and conduct including frequently using her mobile phone at work and having long conversations in Russian on her mobile in the office toilets. The concern was that she might be an animal rights activist attempting to infiltrate the company and she was instructed not speak Russian at work in order that any conversations she had could be understood by English-speaking managers. When Mrs Kelly objected that two Ukrainian colleagues also spoke Russian at work, Mr Simpson asked their managers to pass on similar instructions to those employees.

With a threat of dismissal, Mrs Kelly resigned and claimed direct race discrimination on the grounds of nationality or national origin and racial harassment.

The ET dismissed the claim and the EAT dismissed the appeal.  While Mrs Kelly had satisfied the first stage of the test in establishing that an instruction linked to an employee’s race or national origins could amount to unlawful direct discrimination and harassment, the burden of proof shifted to Covance who were able to show that the instruction was because of their suspicions that she was an activist and not because she was Russian. Covance therefore had a reasonable explanation for their decision that was not related to her nationality. It was reasonable to react in this way in the context in which Covance worked.

Comment

This case has to be considered in its context. Previous cases have found that instructions given by a manager not to speak in her own language could constitute direct race discrimination and that language is an intrinsic part of nationality (Dziedziak v Future Electronics Limited 2011 and Jurga v Lavendale Montessori Ltd 2013).

Employers need very good reasons for controlling the use of other languages in the workplace, especially any attempt to prohibit non-English outside business operations.

You must ensure that:

–         the requirements for the policy are transparent;

–          the policy is to speak English in the workplace (which is a neutral requirement) and not a requirement not to speak another language; and

–          the policy is applied consistently to all nationalities and languages.

While there could still be an indirect discrimination claim, you will at least have the opportunity to justify the policy. You will need evidence of the justification in the event that it is challenged.

If a colleague complains that discussions in non-English are exclusionary and bullying, you should handle the grievance very carefully, in particular:

–       consider whether the grievance is against specific non-native speakers rather than all non-native speakers; and

–       ensure that any outcome strikes a balance between the right to participate for all employees and the right to speak in the native tongue.

If you have any questions, please contact a member of our Employment Team.