Comments made about an individual’s accent can constitute harassment related to race

The recent case of Carozzi v University of Hertfordshire considered whether comments made about an employee’s accent could constitute harassment related to race, alongside a number of other claims brought by the Claimant.

Facts

The Claimant was a Brazilian national of Jewish ethnic origin who gained employment with the University. The Claimant’s probationary period was extended twice, before she decided to resign and bring claims in the Employment Tribunal. The Claimant brought a number of claims against the Respondent, but this note focuses on the following claims pursued by the Claimant:

• A claim of harassment related to race, on the basis that comments had been made about her accent; and
• A claim of victimisation based on the fact that the University’s HR representative had refused to share notes of a meeting on the basis that they feared such notes could be used against the University in tribunal proceedings relating to alleged race discrimination.

The Law

In respect of the harassment claim, section 26(1) of the Equality Act 2010 (EqA 2010) states that a person (A) harasses another (B) if:

• A engages in unwanted conduct related to a relevant protected characteristic (with the relevant protected characteristic in this case being race); and
• The conduct has the purpose or effect of either violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

Under section 26(4) of the EqA 2010, the following must also be taken into account when deciding whether the conduct has the effect referred to above:

• The perception of B;
• The other circumstances of the case;
• Whether it is reasonable for the conduct to have that effect.

With regard to the claim of victimisation, section 27(1) of the EqA 2010 states that a person (A) victimises another person (B) if A subjects B to a detriment because:

• B does a protected act; or
• A believes that B has done, or may do, a protected act.

Section 27(2) defines a protected act as including bringing proceedings and/ or giving evidence or information in connection with proceedings under the EqA 2010.

The Claimant was therefore claiming that she had been both harassed due to unwanted conduct related to her race (by way of comments made about her accent) and that she had also been victimised (on the basis that the refusal to provide the notes of a meeting because they could be used as evidence to support a race discrimination claim constituted a detriment in response to a protected act).

Decision

The Employment Tribunal initially dismissed the Claimant’s claims. It concluded that the comments about the Claimant’s accent were not motivated by her race but were ratherabout the Claimant’s “intelligibility or comprehensibility” when communicating. The Employment Tribunal referred to a previous case (Unite the Union v Nailard) in concluding that a “mental element” is required in a claim of harassment as much as in a claim of direct discrimination (i.e. the treatment had to be “because of” a protected characteristic). It was therefore satisfied that the Claimant’s harassment claim should fail.

The Claimant’s claim of victimisation was also dismissed on the basis that the University ’s decision to refuse to provide the meeting notes to the Claimant could have related to any other claim (for example, constructive dismissal) that was not based on the EqA 2010 and therefore would not have constituted a detriment in response to a protected act. It also considered that the University could have treated any other individual in the same way by refusing to provide the notes, and therefore the claim of victimisation was dismissed.

However, the Employment Appeal Tribunal (EAT) considered that the Employment Tribunal had erred when making these decisions. The EAT concluded that there was no “mental element” required for a harassment claim, and there was a clear distinction from the facts of Unite the Union v Nailard. The EAT was satisfied that harassment may occur in circumstances whereby the protected characteristic did not motivate the harasser (i.e. there was no “mental element”). The example it provided was of a person who unknowingly uses a word that is offensive to people who have a relevant protected characteristic because it is historically linked to the oppression of people with that characteristic. The EAT particularly referred to the requirements of section 26(4) of the EqA 2010, where the perception of the complainant and the consideration of whether it is reasonable for the conduct to have the effect of violating dignity are relevant.

The EAT was therefore satisfied that an individual’s accent can constitute an important part of a person’s national or ethnic identity, and comments made about an accent can have the effect of violating that individual’s dignity. The EAT therefore concluded that comments about an individual’s accent can relate to race.

In respect of the victimisation claim, the EAT concluded that the Employment Tribunal had also erred on this point. Specifically, the EAT considered that the Employment Tribunal had erred in making a comparison with another employee making a complaint that did not amount to a protected act. The correct question was whether the decision not to provide the notes was materially influenced by the fact that the Claimant had brought or might bring a complaint of unlawful discrimination under the EqA 2010.

In the circumstances, the EAT allowed the Claimant’s appeal and remitted both claims to the Employment Tribunal (of a different constitution) for further consideration.

Comment

Whilst this case does not mean that any comments made about an individual’s accent will necessarily constitute harassment (as it will depend upon whether it constitutes unwanted conduct alongside the other provisions of section 26 of the EqA 2010), this case clearly demonstrates that comments made about an individual’s characteristics can constitute harassment even without a “mental element” (i.e. a deliberate link to the protected characteristic) and that to constitute harassment under section 26 of the EqA 2010, the conduct has to be related to the protected characteristic, not because of it.

Similarly, whilst it will not always constitute victimisation to withhold notes, any such steps should be carefully considered given the significant risk of an individual arguing that such conduct constitutes a detriment, particularly where such notes might be disclosable in Employment Tribunal proceedings in any event.

Case reference:  Miss E Carozzi v (1) University of Hertfordshire (2) Ms A Lucas: [2024] EAT 169