In this case, the EAT held that comments about an employee's accent could be related to her race and therefore may amount to harassment. It also considered whether the employer's refusal to disclose meeting notes due to concern that the employee may use them to support a discrimination claim could constitute victimisation.
Facts
Ms Carozzi was employed in a marketing role by the University of Hertfordshire (the University), but resigned before the end of her probationary period (which had twice been extended). She brought employment tribunal claims for constructive dismissal, direct race discrimination (because of her Brazilian nationality or Jewish ethnic origin), direct religious discrimination, harassment related to her race, and victimisation. Following the tribunal's dismissal of her claims, Ms Carozzi was given permission to appeal to the EAT on three grounds, of which we focus on two here.
Ms Carozzi's harassment claim concerned a comment made by a manager, Mrs Lucas, about her accent, which she claimed was related to her Brazilian national origin. The University argued that the remarks related to its concerns about her oral communication skills – clear communication being an important aspect of her role. The tribunal concluded that the comments were in no way motivated by the claimant's race; they were all to do with the claimant's intelligibility or comprehensibility when communicating orally. However, the EAT decided that that was too narrow an approach. The EAT held that the tribunal had been wrong to conclude that, in order for conduct to be "related to" a protected characteristic, it must be motivated by that characteristic. Treatment may be related to a protected characteristic where it is "because of" the protected characteristic, but there may also be circumstances in which harassment occurs where the protected characteristic did not motivate the harasser. The EAT gave the example of a person who unknowingly uses a word that is offensive to people with a particular protected characteristic because it is historically linked to oppression of people with that characteristic. It is possible that use of the word could amount to harassment.
In the EAT's view, an accent can be an important part of a person's national or ethnic identity. Comments about a person's accent may be related to the protected characteristic of race, and criticism of it could violate their dignity. That does not mean that any mention of a person's accent will necessarily amount to harassment – whether or not it does would depend on whether the other conditions set out in the Equality Act, such as that the comment was unwanted and related to race, and whether the conduct had the purpose or effect of violating dignity, are satisfied.
The victimisation claim concerned the University's refusal to provide Ms Carozzi with the notes of a meeting, because it was concerned that they might give Ms Carozzi "ammunition" to pursue a claim against it. The tribunal had found that this did not amount to victimisation because the University would have withheld the notes from any employee whom it thought might pursue any type of claim against it – not just a discrimination claim (which is a protected act under the Equality Act). The tribunal also found that withholding the notes did not amount to a detriment. The EAT disagreed. It held that the tribunal should have considered 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.
As to detriment, the EAT noted that there is case law confirming that an employer taking reasonable steps to preserve its position in discrimination proceedings is not detrimental treatment of the potential claimant. However, the tribunal in this case had not considered whether the parties thought such proceedings were likely. It ought to have asked whether an employee who brings a grievance that might result in a resolution without the need for any tribunal proceedings could reasonably consider themself disadvantaged by the employer's refusal to provide notes of a meeting.
The EAT sent the case back to a different tribunal for reconsideration.
What does this mean for employers?
This case is a reminder that employers must be careful when managing aspects of performance that could have a potential link to an employee's protected characteristic. Any concerns about performance, including any communication difficulties which arise from an accent, should be addressed sensitively and explained with care and precision in order to avoid potential harassment claims. As the EAT noted: "Employers and employees can be expected to take greater care in how they speak and behave at work than they might in their social life. While it is in no-one's interest that colleagues should constantly be walking on egg-shells, it is also important that proper protection is provided against violation of dignity at work."
The decision also provides a note of caution when it comes to victimisation. An employer cannot defend itself by showing that its regular practice is to victimise anyone who does a class of acts which includes but is wider than protected acts.
