Ms Kelly was employed as a contract analyst at an animal research laboratory. The laboratory had previously been the subject of attention from animal rights activists, including assaults on employees. They had also previously had activists obtain work at the lab for the purposes of furthering their cause.
The employer had become concerned about Ms Kelly's behavior pretty quickly after she started work. In particular they found her tendency to disappear into the bathroom with her phone for excessive periods of time and speak on her phone in Russian suspicious. Her line manager, Mr Simpson, told Ms Kelly she had to speak English at work so her managers could understand what she was saying. Ms Kelly immediately complained that two Ukranian colleagues were allowed to speak Russian so the same instruction was then issued to those two employees.
Ms Kelly made complaints of direct discrimination, which cannot be justified, and harassment to the Employment Tribunal but her claim was unsuccessful. The Tribunal found that Mr Simpson issued the instruction to speak English because of his concerns about Ms Kelly's behaviour and that he would have given the same instruction to any employee in the same circumstances - the appropriate comparator - irrespective of their national origins. Similarly they found that the alleged harassment, while being unwanted conduct, was not related to the Claimant's national origins but to the suspicions the Respondent reasonably had about her behavior. The Employment Tribunal, on appeal, upheld the decision of the Employment Tribunal.
A similar claim brought in the Aberdeen employment tribunal was also unsuccessful in persuading the Employment Judge that an instruction to speak English was discriminatory. On this occasion the tribunal found that because the polish claimant, a Miss Konieczna, could speak English she personally was not disadvantaged by the instruction. She was however awarded over £5,000 for racial harassment, the Tribunal having found that managers referred to her colleagues as "[expletive] poles" and that they shouted "English" at her if she was overheard speaking polish.
Despite the outcome of these tribunal hearings in both cases there was potential for the instruction to be discriminatory. In Ms Kelly's case it is noted in the Judgement that such an instruction was capable of amounting to race discrimination even though it did not on this occasion. In in Miss Konieczna's case had she been unable to speak English (which some of her colleagues could not do) then she may also have succeeded.