This article considers the recent case of Carozzi v University of Hertfordshire and another [2024] where the Employment Appeal Tribunal (“EAT”) have held that comments related to race can constitute harassment under the Equality Act 2010, even if they were not consciously motivated by race.
Harassment can take many forms, but under the Equality Act 2010 an individual harasses another where they engage in unwanted conduct related to a protected characteristic which has the purpose or effect of violating dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for another.
The EAT have recently considered the “related to” element of this test in the case of Carozzi v University of Hertfordshire and another [2024].
Background and ET Decision
The case concerned Ms Carozzi, who has Brazilian nationality and Jewish ethnic origin. Ms Carozzi resigned before completion of her probationary period and brought tribunal claims against her employer for race-related harassment and victimisation. Ms Carozzi alleged that during her employment, she was subject to comments about her accent and how it made her difficult to understand.
The employment tribunal dismissed Ms Carozzi’s harassment claim on the basis that the comments were not motivated by her race, but instead were about her inability to communicate clearly and, as such, did not relate to her race. Ms Carozzi appealed to the EAT.
EAT’s Decision
The EAT found that the employment tribunal had erred in its approach to considering whether the harassment was related to Ms Carozzi’s race. It explained that, in contrast to a direct discrimination claim, there was no requirement for a mental or motivational element in order for conduct to be related to a protected characteristic.
The EAT observed that while treatment may be related to a protected characteristic where it is “because of” the protected characteristic, this is not the only way in which conduct can be related to a protected characteristic.
The perception of the victim is an important factor in determining whether harassment has taken place, and the EAT cited the example of a person who uses a word that is offensive to people with a relevant characteristic. It would not matter that the person using that word was not aware of the offense it would cause – the use of the word could still be related to the protected characteristic.
The EAT also found that comments regarding a person’s accent could be related to the protected characteristic of race and that criticism of an accent could have the purpose or effect of violating an individual’s dignity. Not all comments about accent would amount to harassment though; it would depend on the particular circumstances.
Given its concerns about the tribunal’s approach to the case, the EAT remitted Ms Carozzi’s claims to a different tribunal for a re-hearing.
Comment
This case confirms that the test for what is related to a protected characteristic should be applied broadly if there is a relationship between the behaviour and a protected characteristic.
Regardless of the motivations for the conduct, provided there is some relationship between that conduct and the protected characteristic then the conduct could be capable of meeting the definition of harassment. Employers should be aware of this principle, given it is likely to have the same application with other protected characteristics.
With the introduction of the new mandatory duty to take reasonable steps to prevent sexual harassment in October 2024, as well as further and more extensive duties related to harassment being included in the Employment Rights Bill, employers should make sure their policies on harassment are reviewed and updated and that appropriate staff training is provided. This will include setting clear examples of expected behaviour and the consequences of failing to meet those standards.
Please contact us for advice on handling any harassment scenario, or for assistance with implementing suitable policies and training to comply with the law in this area.
