Yes they could, said the Employment Appeals Tribunal (EAT) in Miss E Carozzi v (1) University of Hertfordshire (2) Ms A Lucas: [2024] EAT 169 – GOV.UK
What happened?
The University of Hertfordshire employed Ms Carozzi as a Marketing, Engagement and Partnerships Manager. It twice extended her six-month probation period. Ms Carozzi had not completed it when she resigned. During her employment, Ms Carozzi was subject to comments on her ‘very strong’ Brazilian accent, including comments that it can be difficult to understand.
She claimed race discrimination, harassment and victimisation at the employment tribunal (ET).
Her victimisation claim alleged that the University’s Human Resources (HR) representative refused to share meeting notes that could have supported her discrimination claim.
What does the law say?
Section 26 of the Equality Act 2010 provides:
A person (A) harasses another (B) where:
-
- A engages in unwanted conduct related to a relevant protected characteristic and
- the conduct has the purpose or effect of
- violating B’s dignity, or
- creating an intimidating, hostile, degrading, humiliating or offensive environment for B
What did the Employment Tribunal decide?
It dismissed all claims, explaining that comments about Ms Carozzi’s non-British accent did not amount to racial harassment because they were motivated by intelligibility rather than race. Ms Carozzi appealed to the EAT.
What did the EAT decide?
Harassment
The EAT overturned the decision and remitted it to a fresh ET to reconsider the claims. It observed that harassment must be ‘related to’ a protected characteristic such as race. The tribunal had erred by requiring a mental element similar to that in direct discrimination claims. Comments about a person’s accent could be related to race, as an accent may be an important part of a person’s national or ethnic identity. The ET would need to consider whether the comments were unwanted and related to race, as well as other elements of harassment under the Equality Act 2010.
Victimisation
The EAT held that the tribunal had asked the wrong question in determining the reason for the refusal to supply the meeting notes. The correct question was whether the decision was influenced by Ms. Carozzi making or potentially making a complaint of unlawful discrimination. The EAT also noted that the tribunal had not considered whether refusing to provide the notes could be a detriment for victimisation purposes.
What can we learn?
The case reminds us that there is no requirement for a mental element equivalent to that in a claim of direct discrimination for conduct to be related to a protected characteristic. There may be circumstances in which harassment occurs where the protected characteristic did not motivate the harasser.
A person may unknowingly use a word that is offensive to people who have a relevant protected characteristic because it is historically linked to the oppression of people who have that protected characteristic. The fact that the person, when using the word, did not know that it had such a meaning or connotation would not prevent the word from being related to the protected characteristic. The court would then consider the purpose or effect of that conduct.
What should you do?
- Review your bullying, harassment and diversity policies.
- Analyse your relevant procedures.
- Assess your training.
Ensure they are fit for purpose.
