Policy News Journal - 2015-16

Instruction to speak English at work not discrimination 6 January 2016

Was an instruction to a non-native English speaker not to speak in her native language at work discriminatory?

No, held the Employment Appeal Tribunal (EAT) in Kelly v Covance Laboratories Ltd, dismissing the appeal.

With thanks to Daniel Barnett’s employment law bulletin which provides the details of the case.

The Russian-born Claimant alleged that she had been subjected to discrimination and harassment on the grounds of race or national origin. The Claimant was instructed not to speak Russian at a laboratory involved in animal testing, her conduct in leaving her work station and talking on her phone gave the Respondent cause for concern that she might be an animal rights infiltrator. The Respondent's language policy operated in the context of the Respondent's requirement for its English-speaking managers to understand conversations for security reasons. On the facts found by the employment tribunal, the policy of requiring only English to be spoken at work was not applied because of the Claimant's race or national origin, but her behaviour at work in the context of that particular working environment, it was neither direct discrimination nor harassment, and there was no evidence that the instruction had caused any harassment. The EAT held that the employment tribunal had properly directed itself in law and made permissible findings on the facts. Whilst it can be direct discrimination or harassment to ban the use of a foreign language at work, a comparator speaking any other language apart from English would have been treated in the same way as the Claimant. The EAT rejected an argument, seeking to follow Dziedziak that there was an intrinsic link between the instruction and the Claimant's national origin as she had been instructed not to speak in her 'native Russian', the Respondent's explanation demonstrated no link to national origin in the complained of treatment.

Automatic enrolment: British domiciled seafarers 11 January 2016

The Pensions Regulator issued Fleet Maritime Services (Bermuda) Ltd. with a compliance notice for failing to automatically enrol British-domiciled seafarers regularly working aboard its cruise ships.

Do British seafarers employed on ships operating wholly or principally outside of UK territorial waters “ordinarily work in Great Britain under their contracts” for the purposes of s.1 Pensions Act 2008?

In R (Fleet Maritime Services (Bermuda) Limited) v The Pensions Regulator the High Court (Leggatt J) determined that they do if they work from a ‘base’ in Britain, but that this will not be the case if they do not habitually begin and end their tours of duty from a British port. The Regulator issued the Bermuda-incorporated Claimant with a compliance notice for failing to auto-enrol British-domiciled seafarers regularly working aboard its cruise ships. The Claimant brought a judicial review because its ships operated principally outside of British territorial waters. The Court concluded that the Lawson v Serco approach to determining a peripatetic worker's ‘base’ for the purposes of unfair dismissal jurisdiction was also applicable to the 2008 Act. The Court further determined that, irrespective of duration aboard, seafarers are, under the 2008 Act, based at the port from which their tours of duty generally begin and end not aboard the ship itself or under its flag state. For the Act to apply some degree of regularity is also required, a single tour cannot establish a base. Days spent traveling between Britain and foreign ports of embarkation, whilst remunerated, were also properly treated as commuting, not work. As such the Regulator had erred in finding a duty in relation to those of the Claimant’s employees whose tours did not habitually commence from British ports.

With thanks to Daniel Barnett’s employment law bulletin for providing a summary of this case.

Monitoring employees' use of the internet 15 January 2016

CIPP Policy News Journal

25/04/2016, Page 80 of 453

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