The Employment Appeal Tribunal has held that comments about an employee’s non-British accent could amount to racial harassment even though they were motivated by intelligibility rather than race. In addition, a failure to provide notes from a meeting could amount to victimisation.
Facts
Ms Carozzi, a Brazilian national of Jewish ethnic origin, was employed by the University of Hertfordshire. She resigned before completing her probationary period (which had twice been extended). She brought a number of employment tribunal claims, including for race-related harassment and victimisation. Her harassment claim centred on comments that had been made about her accent. Her victimisation claim alleged that the University’s HR representative, Ms Withers, had refused to share with her the notes of a meeting, because she might then use them against the University in a race discrimination claim.
Law
Harassment – A person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. In deciding whether conduct should be regarded as having that effect, a tribunal must take into account B’s perception, the other circumstances of the case, and whether it is reasonable for the conduct to have that effect. (Section 26, Equality Act 2010 (EqA 2010).
Victimisation occurs where a person (A) subjects another person (B) to a detriment because B has done a protected act, or because A believes that B has done, or may do, a protected act.
Protected acts include:
- Bringing proceedings under the EqA 2010.
- Giving evidence or information in connection with proceedings under the EqA 2010, regardless of who brought those proceedings.
- Doing any other thing for the purposes of or in connection with the EqA 2010.
- Alleging (whether expressly or otherwise) that the respondent or another person has contravened the EqA 2010.
Employment Tribunal
The Employment Tribunal dismissed her claims. It found that the comments about Ms Carozzi’s accent had not been motivated by her race. Rather, they had been about her intelligibility or comprehensibility when communicating.
In relation to the victimisation claim, the Employment Tribunal found that Ms Withers had decided against providing the meeting notes knowing that they might give Ms Carozzi “ammunition” for an employment tribunal claim. However, Ms Withers would have done the same with any other employee who had indicated an intention to make an employment tribunal claim, such as constructive dismissal, that was not based on the EqA 2010.
Employment Appeal Tribunal
The EAT observed that the harassment must be “related to” a protected characteristic such as race. In its view, the Employment Tribunal was wrong in its approach to that component. Treatment may be “related to” a protected characteristic where it is “because of” the protected characteristic, but that is not the only way conduct can be related to a protected characteristic. There may be circumstances in which harassment occurs where the protected characteristic did not motivate the harasser.
In addition, the Employment Tribunal had been wrong to dismiss the employee’s victimisation claim, which had been founded upon the employer’s refusal to share meeting notes which could have given the employee “ammunition” for a discrimination claim. The Employment Tribunal had found that the employer would have acted the same way towards an employee who had indicated an intention to make a tribunal claim not based on the EqA 2010 (and therefore not a protected act). The EAT held that this was the wrong question. The test was whether the decision not to provide the notes was to a material degree influenced by the fact that a complaint of unlawful discrimination had or might be made.
The employee’s appeal was allowed and harassment and victimisation claims were remitted to a fresh Employment Tribunal to be reheard.
