The Employment Appeal Tribunal (EAT) held that making comments about someone’s accent can be discriminatory, even if the comments are not racially motivated.
Facts
Ms Carozzi was employed by the University of Hertfordshire as a Marketing, Engagement and Partnerships Manager. She resigned before the end of her probationary period (which had been extended twice) following multiple alleged instances of harassment, discrimination and victimisation. Ms Carozzi brought an employment tribunal (ET) claim against the University and her line manager, Ms Lucas, including for harassment on account of her Brazilian nationality and Jewish ethnic origin, and victimisation. The harassment claim stemmed from comments that Ms Lucas had made about Ms Carozzi’s accent, while the victimisation claim related to the HR manager’s refusal to share notes of a meeting with her, allegedly because she might use them against the University in a discrimination claim.
ET decision
The ET dismissed each of Ms Carozzi’s claims. It found that the alleged harassment (including the comments made about Ms Carozzi’s accent) was not because of her Brazilian nationality and that the HR manager did not withhold the notes because Ms Carozzi might use them in a discrimination claim. The ET held that Ms Lucas’ comments about Ms Carozzi’s accent concerned her intelligibility or comprehensibility when communicating verbally. On the question of victimisation, it found that the HR manager would have withheld meeting notes from any employee who intimated they planned to bring any tribunal claim, including those that did not involve a complaint of discrimination.
Appeal
Miss Carozzi appealed the ET’s decision and the EAT upheld two of the grounds of appeal, finding that the ET:
- was wrong to find that there must be a “mental element” in a claim of harassment; and
- had asked the wrong question in relation to the victimisation claim.
Harassment
The EAT accepted that conduct may be related to a protected characteristic if it takes place because of that protected characteristic (e.g. mimicking someone’s accent to discriminate against them because of their race). However, the EAT clarified that this is “by no means the only way that conduct can be related to a protected characteristic”. For instance, a person may harass someone by using a slur, even if they did not know or understand the offensiveness of the word, if it meets the elements of the test for harassment: the word is related to a protected characteristic; was unwanted; had the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the individual complaining. Since an accent is often an intrinsic part of a person’s ethnicity or nationality, the EAT held that comments about someone’s accent can be related to their protected characteristic of race.
Victimisation
Victimisation complaints involve someone subjecting the claimant to a detriment because they have done a protected act. Protected acts include bringing a claim under the Equality Act 2010 as well as alleging that the respondent has breached the Equality Act 2010. The EAT held that the correct question for the ET to determine in the victimisation claim was whether the refusal to provide meeting notes was materially influenced by the fact Ms Carozzi had made, or might make, a complaint of unlawful discrimination. The EAT also held that the ET incorrectly applied the test for detrimental treatment because the ET did not consider whether Ms Carozzi might reasonably have considered herself disadvantaged in the workplace by the HR manager withholding the meeting notes.
A fresh tribunal will now rehear Ms Carozzi’s claims of harassment and victimisation and will have to determine whether, on the evidence, the respondents’ conduct did in fact amount to harassment and victimisation.
Takeaways
This decision emphasises the importance of being aware that conduct can amount to unlawful harassment even if the alleged harasser is not consciously or unconsciously motivated by a protected characteristic. It is enough for there to be some link or relationship, when viewed objectively, between the conduct and a protected characteristic. It also serves to underline the need to provide regular training to employees and have clear policies or a code of conduct, so they know the standards of behaviour you expect in the workplace. It can be helpful to include in anti-discrimination and anti-harassment policies examples of the types of language and behaviour that might amount to harassment or discrimination.
If you have any questions, or require assistance relating to your policies and training on preventing discrimination and harassment in the workplace, please get in touch with your usual Dentons contact.
