Kelly v Covance Laboratories Ltd (Race Discrimination: Direct): EAT 20 Oct 2015

Equality Act 2010 sections 13(1), 23 and 26
In circumstances in which the Claimant had been instructed not to speak Russian in the workplace, had the Employment Tribunal erred in dismissing her claims of direct race (national origins) discrimination and/or harassment related to her race (national origins)?
Dismissing the appeal. The ET had correctly proceeded on the basis that it was possible for such an instruction (where linked to an employee’s race/national origins) to amount to an act of direct race discrimination/harassment (applying Dziedziak v Future Electronics Ltd UKEAT/ 0270/11). It had, however, found that (i) the same instruction had been given to the Claimant’s named comparators (even if not actually passed on) and (ii) would have been given to ‘some other employee speaking some language other than English in circumstances that gave [the employer] cause for concern’. The ET had thus reached permissible conclusions on the case whether take to be one of actual comparison (as put by the Claimant) or on the basis of a correctly constructed hypothetical comparator.
In any event, the ‘intrinsic link’ in Dziedziak only went to shift the burden of proof; the EAT had allowed that there might be an explanation other than race. In the present case, the ET had accepted there was such an explanation. It had concluded that any difference in treatment was not because of race, a permissible conclusion given its findings of fact that (i) the employer considered it important that conversations within the workplace should be capable of being understood by English-speaking managers (paragraph 11), (ii) this was to be seen in the context of the Respondent’s involvement in animal testing which had previously made it the subject of attention from animal rights activists, including violent assaults on its employees (paragraph 3), and (iii) given the unusual behaviour displayed by the Claimant as an employee embarking upon a new career, which had led the Respondent to wonder whether her behaviour was explicable by the fact that she was an animal rights infiltrator (paragraphs 10 to 11).
Turning to the harassment case, the reason for the instruction (the conduct the Claimant contended amounted to harassment) was not because the Claimant was a Russian national but because of the suspicions the Respondent reasonably had about her behaviour and the context in which it operated (paragraph 56). In any event, the ET made the alternative, permissible finding that there was no evidence that the instruction had the relevant purpose or effect.

[2015] UKEAT 0186 – 15 – 2010), [2016] IRLR 338
England and Wales


Updated: 17 January 2022; Ref: scu.565079