HR Professionals and employment solicitors are well accustomed to reviewing grievances and Tribunal claims alleging harassment or victimisation at work. In the 14 years since the Equality Act 2010 was implemented, the number of claims of this nature have been on a clear upward trajectory.
In a recent decision, the Employment Appeal Tribunal (EAT) has clarified the legal tests for harassment and victimisation in the workplace. Whilst both points will be of note to employers, the clarification regarding harassment will be of particular concern because, following this decision, someone can harass another even if they didn't know they were doing it.
The Employment Tribunal
Ms Carozzi is a Brazilian national, who was employed by the University of Hertfordshire as a Marketing, Engagement and Partnerships Manager. She was initially employed under a six-month probation period, which was extended twice, and she ultimately resigned before she completed it. Ms Carozzi brought several claims against the University, one of which was harassment on the grounds of race. Central to her harassment claim was that her manager had made unwanted and derogatory comments about her accent, including saying that the team had an issue with Ms Carozzi's 'very strong accent' and therefore didn't want to invite her to meetings.
Dismissing her harassment claim the Tribunal ruled that the comments about Ms Carozzi's accent were not motivated by her race and were instead about Ms Carozzi's 'intelligibility or comprehensibility when communicating'. It ruled that a harassment claim required a mental element in the same way that a direct discrimination claim does, and the unwanted conduct had to have been carried out (in this instance) because of race.
Ms Carozzi also brought a victimisation claim on the basis that the University had refused to share meeting notes with her because of her race discrimination complaint. The University was open about the fact it had refused to share the meeting notes because it didn't want to give Ms Carozzi ammunition in any Tribunal proceedings.
The Tribunal also dismissed the victimisation claim on the basis that the University would have withheld the notes regardless of the nature of the claim that was being contemplated. The University's intention in withholding the notes was to prevent Ms Carozzi from having ammunition against them in any Tribunal claim, and its intention wasn't to prevent her from having ammunition specifically in a discrimination claim.
Ms Carozzi appealed to the EAT.
The EAT
Overruling the Employment Tribunal, the EAT held that the Tribunal had failed to properly apply the tests for harassment and victimisation.
The EAT held that harassment under the Equality Act 2010 does not require a mental element. The unwanted conduct does not need to have been said or done because of the protected characteristic, it simply needs to relate to it. In this case, it determined that accent is an important part of a person's national or ethnic identity, and it was therefore sufficiently related to race for it to constitute harassment.
The EAT also held that the Tribunal had incorrectly applied the legal test for victimisation. The question wasn't whether the University would have hypothetically withheld the meeting notes from Ms Carozzi if her allegation didn't relate to discrimination. Rather, the correct question was whether the decision to withhold the notes in this specific situation was to a material degree influenced by the fact that a discrimination complaint had been made.
Key takeaways for employers
The key takeaway for employers is the EAT's clarification that the legal test for harassment is much broader than most people might think. It is possible for one employee to harass another even if the protected characteristic was not their motivation. The EAT gave the example of someone unknowingly using a word that is historically linked to oppression, which could be offensive to someone of a particular race, and can constitute harassment even if the person didn't know the origin of the word they were using, or where they didn't know that the word related to a person's race.
Equally, defending a victimisation claim on the basis that "we do that for all complaints, not just for those alleging discrimination" is now unlikely to stand up under Tribunal scrutiny.
The EAT's decision reiterates the importance of employers having a clear policy in place and ensuring that employees are given proper training on equality and diversity in the workplace. Employees will need to be much more aware of their actions and the things they say to employees, because they can be found liable for harassment even if they didn't quite appreciate that what they were doing linked to a protected characteristic. Ultimately, discrimination claims can be brought against both the employer, as well as the individual who did the discriminating/harassing. Policies and training are a win/win for everyone as they help protect employers and employees alike.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
