Harassment related to race: what does “related to” actually mean? Carozzi -v- (1) University of Hertfordshire (2) Ms A Lucas [2024] EAT 169

Section 26(1) of the Equality Act 2010 (“EqA 2010”) provides that person A harasses person B if person A engages in unwanted conduct related to a protected characteristic and the conduct has the purpose or effect of violating that person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

There are nine protected characteristics under the EqA 2010:

1. Age;
2. Disability;
3. Gender reassignment;
4. Marriage and civil partnership;
5. Pregnancy and maternity;
6. Race;
7. Religion or belief;
8. Sex; and
9. Sexual orientation.

The recent case of Carozzi -v- (1) University of Hertfordshire (2) Ms A Lucas [2024] EAT 169

Background

Miss Carozzi is of Brazilian nationality and Jewish ethnic origin. Miss Carozzi worked at the University of Hertfordshire as Marketing Engagement and Partnership Manager. She had a probation period of six-months which was extended twice.
During Ms Carozzi’s probation meetings, her line manager Ms Lucas frequently made critical comments about her strong Brazilian accent, including the following:

• “You have a very strong accent, and although your English language is very good it can be difficult for you to be understood, and this is an issue when your role is one of communication, engagement and partnership.”
• “I need you to work on your accent/logical delivery of information so that you can be easily understood.”
• “consider how your accent affects the delivery of your verbal communication, and work on ways to compensate for this by presenting information logically so that you can be easily understood.”

Ms Withers, the University’s HR representative was also present at the probation meetings, in a hand written note, she said, “I find accent easier now – English lang good, but the accent is a concern.”

Ms Carozzi resigned. At the time of her resignation, she had not completed her probation period. Following her resignation, Ms Carozzi issued a claim of constructive dismissal, race discrimination related to race and religion, harassment related to race and religion, and victimisation.

Employment Tribunal (“ET”) decision

The ET had 77 separate allegations of breaches of the Equality Act 2010 to consider.

In reaching its conclusion, the ET referred to the Judgment of Unite the Union v Nailard [2019] ICR 29 whereby the alleged harasser is not consciously or unconsciously motivated by a protected characteristic.

The ET dismissed all of Ms Carozzi’s claims, including her claim for harassment related to race because they found that comments made did not in any way relate to Ms Carozzi’s race. Instead “they were all to do with the claimant’s intelligibility or comprehensibility when communicating orally.”

Employment Appeal Tribunal (“EAT”) decision

Ms Carozzi appealed to the EAT with respect to the ET’s treatment of her complaint of harassment concerning her accent.

The EAT referred to section 9 of the EqA which states that race includes colour, nationality and ethnic and national origins. The EAT commented that employees can be expected to demonstrate a degree of robustness, as was emphasised by the decisions of the Court of Appeal in Grant v HM Land Registry & Anor [2011] ICR 1390 and Richmond Pharmacology v Dhaliwal UKEAT [2008] ICR 724.

His honour Judge James Tayler stated that “the term “related to” is designed to cover all forms of conduct that, properly viewed, has a relationship to the protected characteristic…I consider that the term ‘related to’ is designed to have a relatively broad meaning. The harassment provisions are designed to be pragmatic, balancing the interests of employees against those of their employer and colleagues who may be accused of harassment. That balance cannot be achieved by applying a limited meaning to the words ‘conduct related to a protected characteristic.’”

The EAT concluded that the ET had erred in law in its approach to the concept of treatment related to protected characteristic because there is no requirement for a mental element equivalent to that in a claim of direct discrimination for conduct to be related to a protected characteristic.

Judge James Tayler commented “an accent may be an important part of a person’s national or ethnic identity. Therefore, comments about a person’s accent could be related to the protected characteristic of race. Criticism of such an accent could violate dignity. Obviously, that does not mean that any mention of a person’s accent will amount to harassment.”

The EAT therefore allowed Ms Carozzi’s appeal in respect of harassment related to her accent and remitted it to a different ET for reconsideration.

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24 December 2024