The recent case of Carozzi vs University of Hertfordshire [2014] EAT 169 ruled that comments about a person's accent can amount to harassment related to race.
The tribunal also held that failing to produce meeting notes because of concern about the notes being used in a discrimination claim amounted to victimisation.
Facts of the case
The University of Hertfordshire employed Miss Carozzi as a Marketing, Engagement and Partnerships Manager. She was in her probationary period, which had been extended twice, when she resigned from her role and brought claims against the University of Hertfordshire, the most significant and contentious being:
- harassment related to race; and
- victimisation.
Miss Carozzi was a Brazilian national of Jewish ethnic origin, and she alleged that she had been harassed related to her race (a protected characteristic under employment law legislation) through comments that were made about her accent such as:
'you have a very strong accent, and although your English language is very good it can be difficult for you to be understood, and this is an issue when your role [is] one of communication, engagement and partnership'.
Regarding Miss Carozzi's victimisation claim, she alleged that the University of Hertfordshire's HR representative would not share meeting notes with her because the notes may be used as evidence or 'ammunition' in tribunal proceedings against the university.
Application of the law in this case
Under section 26 Equality Act 2010, a person (A) harasses another person (B) if:
- A engages in unwanted conduct related to a relevant protected characteristic; and
- the conduct has the purpose of effect of:
- violating B's dignity; or
- creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
In this case, Miss Carozzi alleged that the comments made were related to the protected characteristic of race, as her accent goes to the root of her national and ethnic origin. Consequently, the comments violated her dignity or created an intimidating, hostile, degrading, humiliating or offensive environment.
Under section 27 of the Equality Act 2010, A victimises B if A subjects B to detriment because:
- B does a protected act; or
- A believes that B has done, or may do, a protected act.
A 'protected act' includes both bringing proceedings under the Equality Act 2010 (i.e. bringing a claim of discrimination) and making an allegation that the employer or another person has contravened (i.e. alleging that the employer has discriminated).
In Carozzi vs University of Hertfordshire, Miss Carozzi alleged that she was subject to detriment by not receiving copies of meeting notes because the University of Hertfordshire believed that she may raise allegations, which would constitute a ‘protected act’, including raise allegations of discrimination and/or start tribunal proceedings relating to discrimination.
The Employment Tribunal
The Employment Tribunal dismissed Miss Carozzi's harassment claim on the basis that comments made about her accent were not motivated by race. In particular, it cited Unite the Union v Nailard [2018] EWCA Civ 1203 which emphasised the requirement for a 'mental element' in harassment claims. In short, the 'mental element' is the motivation behind, and interlink between the comments made and Miss Carozzi's race. The Employment Tribunal went as far as to suggest that the requirement of a mental element in harassment claims is as important as indirect discrimination claims. It found the comments were about Miss Carozzi's intelligibility and comprehensibility when communicating as opposed to her race.
The Employment Tribunal also dismissed Miss Carozzi's victimisation claim. In dismissing the allegation, it questioned whether a person bringing a different type of claim (other than discrimination) would have been treated differently. The Employment Tribunal found that the university's HR representative would have refused access to the meeting notes to anybody who had threatened to make a tribunal claim, including claims not relating to discrimination under the Equality Act 2010. Consequently, withholding the notes was not detrimental to the claimant.
Miss Carozzi subsequently appealed the Employment Tribunal's decision.
Details of the Employment Appeal Tribunal
Harassment
The Employment Appeal Tribunal found that the Employment Tribunal erred in its approach when assessing whether Miss Carozzi had been harassed. Firstly, it confirmed that her accent was an important part of her national and/or ethnic identity which can be related to race (as a protected characteristic).
Significantly, one of the components of harassment is that the act must be 'related to' a protected characteristic (i.e., race in this case). The Employment Tribunal had wrongly, in the opinion of the Employment Appeal Tribunal, stated that there is a mental element to more typical harassment claims where words are spoken. Instead, to be 'related to' means that the comments made only need to be 'because of' the claimant's race, as opposed to consciously motivated by race. The Employment Appeal Tribunal went on to state that just because the person who made the comments did not realise that they had connotations to Miss Carozzi's race would not prevent the comments from being related to race.
Furthermore, taking into account Miss Carozzi's reasonable perception, the comments violated her dignity or created an intimidating, hostile, degrading, humiliating, or offensive environment, which satisfied the components of harassment.
On this basis, the Employment Appeal Tribunal upheld Miss Carozzi's appeal.
Victimisation
Concerning the victimisation claim, the Employment Appeal Tribunal found that the Employment Tribunal had asked the wrong question to establish why the meeting notes were not supplied. The correct question was whether not providing the meeting notes was materially influenced by the fact that Miss Carozzi had made (or may make) a complaint of discrimination or begin tribunal proceedings. The Employment Appeal Tribunal confirmed that the Equality Act 2010 does not require a comparison to be made with regard to the treatment of others.
Consequently, it held that the Employment Tribunal had also erred in applying the test for detrimental treatment. The Employment Tribunal had not considered whether the parties thought that there were likely to be tribunal proceedings brought against the university. The Employment Appeal Tribunal went on to suggest that as Miss Carozzi raised a grievance with the university, which ultimately may have been resolved without the need for tribunal proceedings, she may have considered herself disadvantaged by not having access to the meeting notes.
On this basis, the Employment Appeal Tribunal upheld Miss Carozzis's appeal.
It was held that both the harassment and victimisation claims will return to a differently constituted Employment Tribunal for re-hearing.
What do you need to consider as an employer?
- Implement robust and clear anti-harassment policies.
- Act with caution and sensitivity when dealing with employees whose performance issues may relate to a protected characteristic. This can be aided by holding open conversations with employees at the start of their employment.
- Promote diversity and inclusion training for all staff, sensibility starting with managers and senior staff.
- Take care with preparing meeting notes, writing emails and preparing scripts for meetings, whether formal or informal. Meeting notes should be clearly documented following the meeting in case employees ever request them via a subject access request or needed for evidence in tribunal proceedings.
- Ensure effective recruitment processes to establish good performance of a role.
