In Carozzi v University of Hertfordshire and another the Employment Appeal Tribunal (EAT) found that an employment tribunal was wrong to conclude that comments about an employee's accent did not amount to harassment under the Equality Act 2010 because they were not motivated by her race.
Background
In 2008, the definition of harassment (at that time contained in the Sex Discrimination Act 1975) was amended from being "on the ground of" someone's gender to being "related to" someone's gender. A drafting point only for the lawyers to get excited about you might think, but the Carozzi case highlights the practical impact this change has had.
Facts
The claimant was a Brazilian who was employed as a Marketing, Engagement and Partnerships Manager at Hertfordshire University. She resigned before completing her probationary period, which had been extended twice. She brought claims for harassment related to race and victimisation against her employer, alleging comments made by her line manager about her accent amounted to harassment related to race. This included her manager telling her that her strong accent was difficult to understand and "this was an issue when your role is one of communication, engagement and partnership".
An employment tribunal dismissed the claims, finding that the comments about the accent were not motivated by race but instead were about the claimant's intelligibility or comprehensibility when communicating.
The victimisation claim was based on the employer's refusal to share notes of a meeting with the claimant because they might be used against them in employment tribunal proceedings. The employment tribunal concluded that the claim failed because the employer did not withhold the notes because the claimant might bring a victimisation claim, they would have withheld the notes from an employee who had indicated they intended to make a tribunal claim of any sort. It also concluded that withholding the notes was not detrimental to the claimant.
EAT judgment
The EAT disagreed in respect of the harassment claim. It found the tribunal had been wrong to conclude that for the conduct to be "related to" a protected characteristic it must be motivated by that characteristic. In some cases, harassment may occur when the harasser is not motivated by the protected characteristic. While mention of a person's accent would not always amount to harassment, such comments may be related to the protected characteristic of race and, if the comments are unwanted and reasonably have the purpose or effect of violating dignity then they can amount to harassment.
The EAT also found the employment tribunal had approached the victimisation claim wrongly. The tribunal should not have considered how the employer would have treated a request for notes by an employee making a complaint that was not related to the Equality Act 2010 (such as an unfair dismissal claim), rather they should have asked whether the refusal to supply the notes was to a material degree influenced by the fact that a discrimination claim had been or might be made. The case was sent back to a different tribunal to be reconsidered.
What can employers learn from this?
The amendment to the definition of harassment was intended to broaden its scope, so a wider range of acts would fall within the definition, and this case shows that intention has been achieved. The fact that the comments made were not motivated by the claimant's race (which under the earlier "on the grounds of" definition they would have had to have been) did not prevent them from amounting to harassment (if the other parts of the definition of harassment were also met). This does mean that where employers are dealing with performance issues that may be related to a protected characteristic, employers are going to have to think very carefully about the way in which that performance is addressed.
Employers should also bear in mind that, if an employment tribunal claim is raised, any notes made that are relevant to the claim may well need to be produced and will be closely scrutinised at a hearing. Care should be taken, even when noting informal meetings, that notes are accurate.
