IT'S ALL RELATIVE
In the case of Carozzi v University of Hertfordshire, the Employment Appeal Tribunal was invited to consider whether comments about an employee’s accent which are not motivated by race are still capable of being “related to” race for harassment purposes.
By way of background, Ms Carozzi, a Brazilian national, had had her probationary period extended twice by the University because of performance concerns. She subsequently resigned before completing her probationary period and brought a claim for harassment on the grounds of race, and victimisation, alleging that pejorative comments had been made about her accent. Her victimisation claim was brought on the basis that the University refused to share minutes of a grievance meeting with her because they were concerned that she would use them as ammunition in a potential discrimination claim.
The University defended the harassment claim on the basis that the comments about Ms Carozzi’s accent had not been motivated by her race; rather, they were comments which had been made about the difficulty which University staff had in understanding Ms Carozzi. Whilst the tribunal at first instance “bought” this defence, holding that there needed to be a ‘mental element’ for harassment to occur, the EAT overturned this decision. Following a careful review of previous case law, the EAT held that, although there may often be a mental element in an act of harassment (in other words, the harassment occurs “because of” the person’s protected characteristic), the Equality Act is (intentionally) worded more widely than this and allows for harassment to occur where the conduct is “related to” a protected characteristic. Furthermore, the EAT commented that a person’s accent may be an important part of their national or ethnic identity, which means that comments about an accent could be “related to” race (albeit acknowledging that this will not always be the case).
“The case is another useful reminder of the fact that the motivation of the alleged harasser is largely irrelevant when it comes to considering whether somebody has been harassed. It also serves to remind us that the person who considers themselves to have been harassed does not necessarily need to share the protected characteristic that is being impugned…”
On the victimisation point, the tribunal at first instance again got it wrong by holding that there was no victimisation because the University would not have given minutes to somebody who might use them to bring a non-discrimination claim (the “reason why” test). The EAT confirmed that this was the wrong test to apply. The correct question was whether there had been a detriment because of a protected act, and the EAT was satisfied that the University’s approach here had been materially influenced by the fact that Ms Carozzi had intimated a discrimination claim. The EAT was also satisfied that there had not been proper consideration by the tribunal of whether Ms Carozzi might consider herself to have been disadvantaged (i.e. subjected to a detriment) by not being provided with the notes of the grievance meeting, given that she had (arguably) engaged in the grievance in the first place to try to resolve her dispute without needing to go to tribunal.
The case is another useful reminder of the fact that the motivation of the alleged harasser is largely irrelevant when it comes to considering whether somebody has been harassed. It also serves to remind us that the person who considers themselves to have been harassed does not necessarily need to share the protected characteristic that is being impugned – it will be sufficient if the harassment is related to a (any) protected characteristic and someone is offended by it.
On the question of whether grievance minutes should be disclosed in response to a pre-claim request, we consider that it is best practice to do so. Certainly, this case leaves open the possibility that a failure to do so in connection with a grievance about alleged discrimination could be considered to be an act of detriment.