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A recent decision from the Employment Appeal Tribunal (EAT) in Carozzi v University of Hertfordshire has provided significant clarification on the scope of harassment under s.26 of the Equality Act 2010. Specifically, the judgment reaffirms that the test of whether conduct is ‘related to’ a protected characteristic does not require motivation linked to the characteristic.
Case Background
Ms Carozzi, a Brazilian national of Jewish ethnic origin, was employed as a Marketing, Engagement, and Partnerships Manager at the University of Hertfordshire. During her probationary period, she resigned and subsequently brought several claims, including harassment on grounds of race.
The harassment claim stemmed from comments made about her accent. Colleagues remarked that her accent was ‘very strong’ and that it made her ‘difficult to understand.’ The Employment Tribunal (ET) dismissed the claim, concluding that these comments were not made because of her race but rather due to concerns about her intelligibility when communicating orally.
The EAT’s Decision
The EAT overturned the ET’s decision, emphasising a crucial distinction: while direct discrimination claims require proof of a mental element—i.e., that the conduct was ‘because of’ a protected characteristic—harassment under s.26 does not. Instead, the relevant question is whether the conduct is ‘related to’ the characteristic, a broader test.
The EAT drew on previous case law to illustrate this principle. It highlighted that sexist jokes or racially insensitive language can amount to harassment even if the person making the comment had no discriminatory intent. Similarly, in Carozzi, comments about the claimant’s accent could be objectively linked to her race or ethnic origin, making them ‘related to’ a protected characteristic.
The Importance of Accent in Race Discrimination
The judgment underscores that accent can be an integral part of a person’s national or ethnic identity. Criticism of an individual’s accent can, therefore, be related to race and may violate their dignity, creating an offensive or humiliating environment.
- No Mental Element Required: Unlike direct discrimination, harassment claims do not require proof of intent or motivation. Conduct can be ‘related to’ a protected characteristic without the perpetrator being consciously discriminatory.
- Objective Link Test: The key question is whether there is an objective connection between the conduct and the protected characteristic, rather than whether the conduct was because of the characteristic.
- Accent as a Race-Related Factor: The ruling reinforces that an individual’s accent can be closely tied to their racial or ethnic identity. Criticism of an accent may therefore amount to racial harassment.
Key Takeaways for Employers
The decision clarifies and broadens the scope of harassment claims under the Equality Act 2010. By reaffirming that conduct can be ‘related to’ a protected characteristic without the need for a discriminatory motive, the EAT has strengthened protections against workplace harassment. This ruling serves as a crucial reminder that even seemingly neutral comments about aspects like accent can contribute to a discriminatory work environment.
Employers should ensure that:
- Training programs emphasise that harassment can occur regardless of intent.
- Workplace culture discourages comments about accents, dialects, or other features linked to ethnic or national identity.
- Complaints procedures recognise that harassment does not require explicit discriminatory intent but rather an objective link to a protected characteristic.
Please get in touch if you have any questions regarding the issues discussed in this article.
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