Appeal No. UKEAT/0186/15/LA

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

	At the Tribunal
	On 20 October 2015

Before
HER HONOUR JUDGE EADY QC
(SITTING ALONE)

MRS A KELLY	APPELLANT

COVANCE LABORATORIES LIMITED	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MRS ANNA KELLY
(The Appellant in Person)	
For the Respondent	MR MARTIN PALMER
(of Counsel)
Instructed by:
Messrs Walker Morris Solicitors
Kings Court
12 King Street
Leeds
LS1 2HL

SUMMARY
RACE DISCRIMINATION - Direct
HARASSMENT - Conduct
HARASSMENT - Purpose

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)?

Held:
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.

HER HONOUR JUDGE EADY QC

Introduction
1.	I refer to the parties as the Claimant and the Respondent, as below.  This is the Claimant’s appeal against a Reserved Judgment of the Leeds Employment Tribunal (Employment Judge Burton, sitting with members on 24-27 February 2015; “the ET”), sent to the parties on 13 March 2015, by which the Claimant’s claims of race and sex discrimination, harassment and victimisation were dismissed.  Representation below was as before me.

2.	Considering the matter on the papers, Lewis J permitted the appeal to proceed on two bases: whether the ET correctly addressed the questions of (1) direct discrimination because of Russian nationality, and/or (2) harassment, in relation to the prohibition on the Claimant speaking Russian in the workplace.  The Respondent resists the appeal.

The Background Facts
3.	The Respondent (part of a large multinational company) operates a testing laboratory in Harrogate, North Yorkshire.  It employed the Claimant, who is of Russian national origin, as a contract analyst from 3 February 2014, subject to an initial six-month probationary period.  From early on, however, concerns arose relating to the Claimant’s conduct and performance.  

4.	It is relevant to record (as the ET did, see paragraph 3), that part of the work undertaken by the Respondent involves the use of animals for testing products.  As a consequence, it has been the subject of attention by those involved in the animal rights movement, which has included violent assaults on some of its employees.  During the early weeks of her employment with the Respondent the Claimant’s conduct was sufficiently unusual for a new employee in her position that her line manager, Mr Simpson, began to wonder whether she was in fact an animal rights activist who had infiltrated the Respondent.  He was aware of previous incidents where this had happened, with activists obtaining employment with the Respondent to obtain information to use in furtherance of their campaign.  In the Claimant’s case, the behaviour in question included often using her mobile ‘phone at work, disappearing into the bathroom with her ‘phone for excessive periods and speaking on her ‘phone in Russian (paragraph 10).  

5.	As a consequence of his concerns about this behaviour, on 5 March 2014 Mr Simpson instructed the Claimant not to speak in Russian at work.  He considered it important that any conversations taking place in the workplace should be capable of being understood by English speaking managers.  When the Claimant objected that two of her Ukrainian colleagues also spoke in Russian at work, he passed on similar instructions to their managers.  He also raised various other performance and conduct issues with the Claimant, who responded by email shortly afterwards apparently accepting those points in a positive manner (paragraph 11).

6.	Thereafter, however, problems continued.  At her two-month probationary appraisal, the Claimant was told she would be moved into a formal capability process.  At that point, the Claimant raised a grievance about Mr Simpson, which included, relevantly, complaints of race discrimination.  The Respondent considered the grievance needed to be dealt with before the formal process continued, but had concerns this would delay dealing with the employment issues (particularly at a time where Mr Simpson and other senior managers would be away, potentially leaving the Claimant in the office unsupervised) and so suspended the Claimant.  The grievance was investigated but rejected by letter of 25 April 2014 and the appeal was heard but dismissed on 9 May 2014.  On 12 May 2014, the Claimant was invited to attend a formal capability process meeting on 16 May.  
7.	Meanwhile, the Claimant had contacted ACAS and, on 13 May, an ACAS officer contacted the Respondent, which made it question whether the Claimant’s knowledge of ET procedures indicated she had brought proceedings before and so undertook a Google search of her name.  This disclosed that, in October 2013, the Claimant had been convicted of benefit fraud at the Crown Court and given a suspended prison sentence.  This was raised with the Claimant at the meeting on 16 May, when she was told there would be a disciplinary hearing on 21 May to look into the allegation that she had withheld information from the Respondent and had failed to disclose her criminal conviction.  On 20 May 2014 the Claimant tendered her resignation.  She subsequently brought the ET proceedings with which this appeal is concerned.

The ET’s Decision and Reasoning
8.	The ET’s Reasons go through each of the allegations made by the Claimant.  In broad terms, it was unable to see that she had established facts that could lead it to conclude that any of the matters complained of were to do with her national origin, race or sex.  To the extent that the Claimant relied on the same matters as acts of unlawful harassment, it equally did not find these related to her national origins for the purpose of section 26 of the Equality Act (“EqA”).

9.	Specifically, the ET rejected the Claimant’s complaint relating to the instruction that she not speak Russian in the workplace; there was no reason to believe that another employee, of a different national origin to the Claimant but seeking to speak a language other than English in the workplace, would have been treated any differently.  The Claimant relied on the fact that her two Russian speaking Ukrainian colleagues had not been subjected to the same instruction, but the ET found that Mr Simpson had told their line managers to impose a similar prohibition on them, albeit that instruction had not been carried out.  The ET observed:
“47. … it would be a very strange thing if Mr Simpson were to discriminate against a Russian national in relation to the use of that language and treat a Ukrainian national more favourably in that regard. …”
10.	The ET considered the correct comparator was another employee speaking some language other than English in circumstances that gave Mr Simpson reasonable cause for concern.  It was this that caused him to give the instruction to the Claimant.  He would have given the same instruction in respect of any other employee where those concerns arose.

11.	Considering this matter as an allegation of unlawful harassment, the ET allowed that the instruction was unwanted conduct, but it was not satisfied that it related to the Claimant’s nationality.  Whilst (as a Russian national) Russian was her mother tongue, the test was not one of causation but was a subjective test as to why a person had acted as they did; a matter to be determined in the context within which the comment was made.  The ET concluded:
“56. Mr Simpson did not give that instruction because the Claimant was a Russian national but because of the suspicions that he had about her.  That conduct did not, therefore, “relate to” the Claimant’s national origins. …”

12.	In any event, the ET was not satisfied that the instruction did have the effect (let alone the purpose) of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her.  Specifically, whilst the Claimant did not generally hold back from making complaint, she had emailed shortly after this instruction displaying no concerns (paragraph 56).

Submissions
The Claimant’s Case
13.	On the direct discrimination claim the Claimant argued that the ET got it wrong in its acceptance of Mr Simpson’s evidence as to instruction to the other employees to speak only English in the workplace.  As had been noted at an earlier Preliminary Hearing, the Claimant relied on what she contended were possible inconsistencies in the Respondent’s evidence on this question.  Further, she relied on the fact that other employees were allowed to speak other languages in the workplace and not given the same instruction.  Generally, she disagreed with the findings that her behaviour had been such as to reasonably give rise to concerns on the part of Mr Simpson, and she pointed to a passage (in one of the internal process documents) where he had referred to another employee’s marriage into a Bosnian family, saying that showed he was racist (albeit she accepted the evidence in question could be read in a different way).  She had cross-examined Mr Simpson on this point and made good her submission to the ET.

14.	As for the Respondent’s explanation, it would have been perverse to conclude she was an animal rights infiltrator, and there was no evidence to suggest that she spoke to anyone in Russian apart from two colleagues and one client.  The Respondent was a multinational company; it was generally accepted that different languages were spoken in the workplace.  More specifically, the Claimant relied on evidence that Mr Simpson objected to her speaking in her “native Russian” (relying on a reference in the internal meeting of 7 April to Mr Simpson using that expression).  That necessarily linked the instruction to her national origins, relying on the approach of the EAT in the case of Dziedziak v Future Electronics Ltd UKEAT/0270/11.  The ET had not referred to Dziedziak; its reasoning on the law was flawed.  Simply linking the instruction to the Claimant’s nationality was sufficient to amount to less favourable treatment.  It was certainly an act of harassment related to her race.

15.	The ET was also wrong to conclude (paragraph 56) that the instruction that she should not speak Russian in the workplace was not an act of harassment and that it did not have the relevant effect.  The notes of her grievance appeal hearing (in evidence before the ET) demonstrated the Respondent understood she had been riled by the instruction.  The ET was wrong to find she was not caused distress.  There was also evidence from her mental health worker, to whom she was referred in May 2014 (when she was suspended), who spoke of her depression as being “clearly influenced by issues at work” and referred to her reporting “systematic, abusive and prejudicial behaviour over a long period of months”.  The ET erred in failing to have regard to that evidence when drawing its conclusion as to the effect of the behaviour relied on by the Claimant as an act of harassment.

The Respondent’s Case
16.	Mr Palmer confirmed that Dziedziak had been before the ET along with other cases relied on by the parties.  That said, ultimately the reasoning in Dziedziak could not help the Claimant, given the ET’s findings of fact (specifically those at paragraphs 10 and 11, read along with the findings at paragraph 3) and the ET’s acceptance of the Respondent’s non-discriminatory explanation for the instruction in this case.  The ET’s conclusion at paragraph 47 dealt with the instruction not to speak Russian, and that was the answer to the direct race discrimination complaint.  The ET had correctly directed itself to the appropriate test in determining whether the instruction from Mr Simpson to the Claimant constituted less favourable treatment because of her race/national origin.  It made coherent findings of fact, specifically that (1) the same instruction had been given by Mr Simpson to the Claimant’s two named comparators (there was no difference of treatment, even if the respective line managers had then failed to pass the instruction on) and (2) the same instruction would have been given to some other employees speaking some language other than English in circumstances that gave Mr Simpson cause for concern.  Thus the ET had reached a permissible conclusion on the case whether taken to be one of actual comparison, as put by the Claimant, or on the basis of a correctly constructed hypothetical comparator.

17.	The reliance on Dziedziak was misplaced.  In that case, the instruction had been that the Claimant was not to speak in her own language, and the ET in the present case had made no finding that the Claimant was instructed not to speak in her native language, only that she was not to speak Russian (which happened to be her native language).  In any event, what had been found to be an intrinsic link in Dziedziak only went to shift the burden of proof; the EAT had allowed there might still be an explanation other than race (paragraph 48 of that Judgment).  In the present case the ET had accepted there was such an explanation.  It had concluded any difference in treatment was not because of race, and that was a permissible conclusion given its findings: (1) Mr Simpson considered it important that conversations in the workplace should be capable of being understood by English speaking managers (paragraph 11); (2) this was to be seen in the context of the Respondent’s involvement in animal testing, which had made it the subject of attention from animal rights activists including violent assaults on employees (paragraph 3); and (3) given the unusual behaviour displayed by the Claimant as an employee embarking upon a new career, which had led Mr Simpson to wonder whether this was explicable by the fact that she was an animal rights infiltrator (paragraphs 10 to 11).
 
18.	On harassment, the ET again gave a correct self-direction.  Asking what the reason was for Mr Simpson’s instruction, the ET concluded it was not because the Claimant was a Russian national but because of the suspicions he had about her (paragraph 56).  Alternatively, the ET found no evidence that the instruction had the relevant purpose or effect.  Although the mental health practitioner’s evidence was not referred to in the reasoning, it was unclear where this went.  It had been referred to during the hearing, but was dated some time after the relevant event and referred to various issues in the workplace, not specifically the language instruction.  The ET had been entitled to place weight on other evidence, in particular the Claimant’s email sent very soon after the instruction had been given, evidencing no relevant effect.

The Relevant Legal Principles
19.	I start with the EqA 2010.  Section 13 defines direct discrimination as follows:
“(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

20.	Less favourable treatment imports a comparison; as to which section 23(1) provides:
“(1) On a comparison of cases for the purposes of section 13 … there must be no material difference between the circumstances relating to each case.”

21.	By section 26 harassment is defined, relevantly, as follows:
“(1) A person (A) harasses another (B) if -
(a) A engages in unwanted conduct related to a relevant protected characteristic, and
(b) the conduct has the purpose or effect of -
(i) violating B’s dignity, or
(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
…
(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account -
(a) the perception of B;
(b) the other circumstances of the case;
(c) whether it is reasonable for the conduct to have that effect.
(5)  The relevant protected characteristics are -
…
race 
…”

22.	Guidance as to the approach to be adopted in harassment cases in the light of that definition was laid down in Richmond Pharmacology v Dhaliwal [2009] ICR 724 EAT, which identified three elements: there must be (1) unwanted conduct, (2) which had the purpose or effect of either (a) violating the Claimant’s dignity or (b) creating an adverse environment for her, and (3) that must be related to the relevant prohibited ground (here, race).
23.	The specific issue with which this appeal is concerned relates to the instruction given to the Claimant not to speak Russian in the workplace, whether viewed as an act of direct race discrimination or as harassment.  An instruction to only speak a particular language in the workplace might generally amount to a provision, criterion or practice of apparently neutral application, potentially giving rise to issues of indirect rather than direct race discrimination.  Where, however, the instruction is linked to the employee’s race or national origins, that may give rise to less favourable treatment because of something intrinsically linked with their nationality, thus giving rise to a potential case of direct race discrimination (see Dziedziak).

Discussion and Conclusions
24.	In hearing the Claimant’s submissions before me, it is apparent that she is genuinely aggrieved that the ET did not accept her case, preferring that of the Respondent.  In particular - having challenged Mr Simpson’s evidence in cross-examination and in her own evidence and submissions - she is unable to see why the ET accepted his explanation for his treatment of her, specifically for his instruction for her not to speak Russian in the workplace.  It was also apparent, however, that the Claimant is simply unable to accept that parts of the evidence, on which she seeks to rely, might be read in a different way or might just not support her case.  

25.	The ET had all that evidence before it, and had the benefit of hearing witnesses giving evidence under cross-examination.  This is not a perversity or no-evidence appeal; those grounds were dismissed on the paper sift by Lewis J, and it is not possible for me to go behind the ET’s findings of fact made on the basis of all the evidence before it.  Having heard from the Claimant, I am, however, satisfied that her points were made fully and clearly before the ET.  Equally, I am satisfied that it was open to the ET to reject those points, as it did.

26.	Turning to the specific points of law raised by the appeal, the ET did not reject the Claimant’s complaints on the basis that an instruction that she should not speak Russian when at work could not give rise to a complaint of direct discrimination or harassment.  It did not need to make express reference to Dziedziak, because it adopted an approach that was entirely consistent with that case.  There were, however, two relevant differences between the present case and that of Dziedziak.  First, the present case had raised a question of actual comparison (the two Russian speaking Ukrainian colleagues), which the ET rejected on the facts.  It similarly rejected any other possibility of less favourable treatment on the basis of a hypothetical comparison.  Second, in this case the ET was satisfied that the Respondent had made good a non-discriminatory explanation, which meant the Claimant’s claims would fail.

27.	Looking first at the direct discrimination case, the ET considered the actual comparators relied on by the Claimant but accepted Mr Simpson’s evidence, finding as a fact that he had given the same instruction that the comparators should also not speak Russian in the workplace.  The Claimant takes issue with that finding, but cannot say there was no evidence to support it; that, after all, was Mr Simpson’s evidence.  The best she can do is to point to what she says were inconsistencies in the evidence, but those were matters explored fully before the ET and were properly matters for it.  Its conclusion is not undermined.  

28.	In any event, the ET considered the question of comparison in the light of the approach required by section 23 EqA.  It correctly concluded that the relevant comparator, in like circumstances, would have to be another employee speaking a language other than English in circumstances that gave Mr Simpson reasonable cause for concern.  It was not suggested that there was an actual comparator in those same circumstances.  Assuming a hypothetical comparator, the ET, having weighed the evidence before it, concluded that any such employee, in like circumstances, would have been treated in the same way.  

29.	The Claimant seeks to avoid that conclusion by taking issue with the ET’s finding that Mr Simpson reasonably had concerns about her behaviour, but that takes her into the territory of the grounds of appeal that Lewis J did not let proceed - the generalised arguments of perversity and bias.  Having allowed the Claimant some leeway on these points, I am satisfied that no point is properly raised in this regard.  Having reached the findings it did (specifically at paragraphs 3, 10 and 11), the ET was entitled to conclude that Mr Simpson had reasonable grounds for concern and that any comparator who had raised similar concerns - given the environment in which the Respondent operated - would have been treated in the same way.

30.	Perhaps the best point that might be said to arise from the Claimant’s submissions is that, following Dziedziak, the ET ought to have concluded that the reference to the Claimant not speaking her native Russian should have been taken to have shifted the burden of proof.  Allowing that the ET did not actually find that Mr Simpson had used that expression, even if it had, the fatal point for the Claimant’s argument is that the ET went on, in any event, to consider the Respondent’s explanation for his treatment.  It thereby effectively shifted the burden of proof to the Respondent, and was satisfied that had discharged it: the instruction was not related to the Claimant’s race or national origins but to Mr Simpon’s justified concerns about her conduct in the light of the very real risks in the Respondent’s business.  

31.	That is also the answer to the Claimant’s harassment claim.  Allowing that a reference to someone’s own or native language might mean that it is related to that person’s race (extending the reasoning in Dziedziak), the ET here found the Respondent had provided an alternative explanation, which it accepted.  Ultimately, it was not the Claimant’s race or national origin that caused Mr Simpson to give the instruction but her behaviour, given the context in which the Respondent operated and the risks it faced.

32.	Whilst not strictly necessary for me to consider the challenge to the alternative basis on which the ET rejected the harassment claim, I do so for completeness.  The ET found, in the alternative, that the conduct in issue did not have the necessary effect of violating the Claimant’s dignity or creating an adverse environment for her.  Accepting that the ET did not expressly refer to the evidence from the Claimant’s mental health practitioner, I cannot say that that renders this alternative conclusion unsafe.  That evidence did not expressly refer to the language instruction.  Furthermore, the reference to the mental health practitioner was made later when other events had taken place at work (the internal processes were by then underway), not at the time of the instruction.  The ET relied on the Claimant’s immediate reaction to the instruction, as evidenced by her email response to Mr Simpson; it was entitled to do so, and its conclusion in this respect must also stand.

33.	For all these reasons, I dismiss the appeal.