In Kelly v Covance Laboratories Ltd (UKEAT/0186/15), the EAT has ruled that an instruction to an employee not to speak Russian at work was neither direct race discrimination nor race harassment.

The judgment may appear surprising, given the ACAS guidance that such instructions are likely to be discriminatory, and the prior EAT ruling in Dziedziak v Future Electronics Ltd (UKEAT/0270/11) that a similar instruction was unlawful.

However, the key issues in Kelly centred on the work of the employer, which involved animal testing. Covance Laboratories had already been infiltrated by animal rights activists, and staff had been subject to attacks.

Kelly, a native Russian who was on a two-month probationary contract, had been observed conducting lengthy mobile conversations in the toilets in Russian. This triggered the suspicion that she might be an infiltrator passing information to opponents of the company. She was instructed to use English at work, but she objected on the basis that Ukrainian staff had not been similarly instructed. The company responded by issuing the same instruction to the Ukrainians.

Shortly afterwards the disciplinary procedure was invoked against Kelly on performance grounds. Prior to a disciplinary outcome, she resigned and complained of direct race discrimination and race harassment. Her claims failed.

The EAT upheld the ET’s decision.

This does not give rise to a general rule that employers can insist on employees speaking English at work. Such a rule will only apply where particular concerns, such as security, are an issue. Further, the issue was not Kelly’s ability to speak English, it was her insistence on speaking Russian for private purposes while at work.