In the case of Carozzi v University of Hertfordshire, the Employment Appeal Tribunal (the EAT) held that comments about a person’s accent could be "related to" race and amount to harassment, even if the comments were not consciously motivated by race.
Legal tests
An understanding of the legal tests for harassment and victimisation as set out in the Equality Act 2010 will assist with the understanding of the findings in this case.
Harassment:
A person (A) harasses another (B) if:
- A engages in unwanted conduct related to a relevant protected characteristic; and
- which has the purpose or effect of either:
- Violating B’s dignity; or
- Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
In deciding whether conduct has such an effect on B, the following must be taken into account:
- The perception of B
- The other circumstances of the case
- Whether it is reasonable for the conduct to have that effect
The relevant protected characteristic in this case was race.
Victimisation:
A person (A) victimises another person (B) to a detriment because:
- B does a protected act; or
- A believes that B has done, or may do a protected act.
The "protected act" in this case was the act of the Claimant bringing a race discrimination claim against the University.
Facts
The Claimant, Ms Carozzi, a Brazilian national of Jewish ethnic origin, was employed by the University of Hertfordshire as a Marketing, Engagement and Partnerships Manager. The Claimant was subject to a six-month probationary period (which had twice been extended) and had not been completed at the time she resigned.
Following her resignation, the Claimant brought a number of claims including:
- a claim for race-related harassment on the basis that comments were made about her “strong accent”; and
- a claim for victimisation on the basis that the University’s HR representative had not shared minutes of a meeting with her due to concerns that the Claimant may use the notes as part of a race discrimination claim against the university.
Employment Tribunal
The Tribunal dismissed the race-related harassment claim. The Tribunal found that the comments about the Claimant’s accent had not been motivated by her race, rather the comments centred around the Claimant’s “intelligibility or comprehensibility when communicating orally”. The Tribunal stated that in a claim of harassment, a "mental element" is required which links the treatment to the protected characteristic.
The victimisation claim was also dismissed due to the Tribunal determining that the HR representative would have withheld meeting minutes from any other employee who intimated they were going to bring a tribunal claim against the University.
The Claimant appealed to the EAT.
Employment Appeal Tribunal
The EAT upheld the Claimant’s appeal on both grounds.
The EAT held that, when deciding if conduct "related to" a protected characteristic, no ‘mental element’ was required. The EAT stated that there may be circumstances where the protected characteristic did not motivate the harasser, however, harassment nevertheless occurs. The Tribunal gave the example of a person using a word which is offensive to those who have a relevant protected characteristic due to historic links to oppression of those with that characteristic. The fact that the person did not know a word had those links wouldn’t prevent the word being related to the protected characteristic.
The EAT noted that a person’s accent may be an important part of their national or ethnic identity and comments about their accent, then, could be related to race. Criticism of a person’s accent may therefore amount to harassment if the effect was that the criticism violated a person’s dignity, or created an intimidating, hostile, degrading, humiliating or offensive environment.
In respect of the victimistation claim, the EAT considered that the question the Tribunal should have asked was whether the decision not to provide the meeting minutes had been influenced by the Claimant intimating that she would bring a discrimination claim. The comparison should not have been with another employee threatening to bring a claim which did not amount to discrimination.
The EAT remitted both claims to a fresh tribunal for consideration.
Comment
This case has made clear that an employee can be subjected to harassment (despite the harasser having no conscious or unconscious motivation to do so) in circumstances where there is a link between the conduct or language used by a person and a protected characteristic.
The principles set out in this case will apply equally to all harassment claims. Employers should therefore be mindful of the potential for conduct and language to inadvertently amount to harassment where there could be a link to a protected characteristic and provide appropriate training to its employees to minimise thelikelihood of similar claims being brought.
Rachel Collins