Case update: could comments about accent be harassment?

The Employment Appeal Tribunal, in the case of case of Carozzi v University of Hertfordshire, has held that an employment tribunal was wrong to find that comments about an employee’s accent were not harassment under the Equality Act 2010 because the comments were not motivated by her race.

The Legal Bit

Under section 26 Equality Act 2010, a person (A) harasses another (B) if:

• A engages in unwanted conduct related to a relevant protected characteristic (in this case, race); and
• the conduct has the purpose or effect of violating B's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

In deciding whether conduct has such an effect on B, a tribunal must take into account B’s perception of A’s conduct, the other circumstances of the case, and whether it is reasonable for A’s conduct to have that effect on B.

Under section 27 Equality Act 2010, A victimises B if A subjects B to a detriment because B has done, or A thinks that B may do, a protected act, such as making an allegation that they have been discriminated against.

Facts

Miss Carozzi, the Claimant, is a Brazilian national of Jewish ethnic origin. She was employed by the University of Hertfordshire (‘the University’) as Marketing, Engagement and Partnerships Manager. Her probationary period was extended twice and ultimately she resigned before completing it. She brought employment tribunal claims including claims for harassment related to race and victimisation against the University and her line manager, Ms L.

The Claimant alleged comments made by Ms L about her accent amounted to harassment related to race. For example, in discussing performance concerns with the Claimant at a five month review, Ms L said that “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.”

In her victimisation claim, the Claimant alleged that a HR Business Partner, Ms W, refused to share notes of an informal meeting because it might be used against the University in tribunal proceedings for race discrimination.

The Employment Tribunal claim (ET)

The ET dismissed the Claimant’s claims. In the harassment claim, the ET found that Ms L’s comments about the Claimant’s accent were not motivated by her race. They were about her intelligibility or comprehensibility when communicating orally. In reaching this conclusion, the ET relied on the Court of Appeal’s decision in Unite the Union v Nailard 2019, noting that the Court had stated that a ‘mental element’ essentially linking the treatment (consciously or unconsciously) to the protected characteristic, is required in a claim of harassment as much as it is in a claim of direct discrimination.

As regards the victimisation claim, the ET found that Miss W decided not to provide the meeting notes to avoid giving the Claimant ‘ammunition’ in a future grievance or ET proceedings. However, Miss W would have done the same with any other employee who had indicated an intention to make any claim  including ones which did not include a claim under the Equality Act, for example, a non-Equality Act constructive dismissal claim. In any event, it did not consider that withholding the notes was detrimental as they could only have been required for the purpose of making a complaint internally or to an ET, and the University was seeking to preserve its position.

The Claimant appealed to the Employment Appeal Tribunal.

Employment Appeal Tribunal (EAT)

The EAT observed that in deciding whether conduct ‘related to’ a protected characteristic, there is no requirement for a mental element as there is in a claim of direct discrimination. In Nailard, the question for the Court of Appeal was whether a failure to investigate a grievance alleging sex discrimination was itself related to the protected characteristic of sex. The case was not about harassment in the more typical circumstances in which a complaint is made about words spoken to, or behaviour towards, an individual, and whether that conduct is related to a protected characteristic.

The EAT said that there may be circumstances in which harassment occurs where the protected characteristic did not motivate the harasser. For example, a person who unknowingly uses a word that is offensive to people who have a relevant protected characteristic because it is historically linked to oppression of people with that characteristic. The ET would then have to go on to consider whether use of that word amounted to harassment applying the factors in section 26(4), including the perception of the claimant and whether it is reasonable for the conduct to have the effect of violating their dignity. The EAT went on to say that an accent may be an important part of a person’s national or ethnic identity. So, comments about a person’s accent could be related to race and criticism of such an accent could amount to harassment if they violate the claimant’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment, depending on the circumstances.

In relation to the victimisation claim, the EAT held that the correct question for the ET was whether the decision not to provide the notes was to a material degree influenced by the fact that a complaint of discrimination had or might be made. The comparison was not with another employee making a similar type of complaint (e.g. constructive dismissal) that did not amount to an allegation of discrimination. As regards detriment, the House of Lords in Chief Constable of West Yorkshire Police v Khan held that an employer taking reasonable steps to preserve its position in discrimination proceedings is not detrimental treatment of the potential claimant. However, the analysis of the ET in this case did not consider whether the parties thought that there were likely to be ET proceedings. The ET also did not consider whether an employee who brings a grievance that might resolve the issues with their employer, without the need for any ET proceedings, might reasonably consider themselves disadvantaged by not being provided with the notes of a meeting.

The EAT therefore upheld the Claimant’s appeal and ordered that the harassment and victimisation should be heard again by the ET in front of a differently constituted panel.

Conclusion

As the EAT observed, this case does not mean that any mention of a person’s accent will always amount to harassment. If comments about an employee’s accent relate to race and violate their dignity or create an intimidating, hostile, degrading, humiliating or offensive environment, consideration will still have to be given to whether it was reasonable for the comments to have that effect on them. For example, the ET in this case found that the Claimant did have a strong accent, that she accepted herself that she had a strong accent and that she referred twice to elocution lessons in the context of the need for her oral communications to be clearer. When the newly constituted ET rehears this claim, it will have to consider those matters for itself and whether the Claimant’s perception of the comments was reasonable in all of the circumstances.

However, the case does underline the need for effective recruitment practices that establish whether a person is capable of performing the role and the need for sensitive handling of cases where an employee’s accent is the root of a performance issue. In raising this with an employee, employers will need to set out a rationale as to why clear communication is essential to the role and examples of any difficulties this has caused. In this case, the University could potentially have avoided the problem altogether by not raising the accent issue, as the ET judgment suggests there were more fundamental performance issues such as negative feedback from external partners about the Claimant’s inappropriate manner in meetings.

The case also highlights the need for care when taking notes, writing e-mails and preparing meeting scripts, all of which were closely scrutinised in this claim. Even if notes of an informal meeting are not intended for disclosure to the employee, they may be requested by the employee and may ultimately be subject to disclosure under a data subject access request or in ET proceedings. If notes are requested, then careful consideration will need to be given as to whether it is appropriate to disclose them and if not, why not and whether such reasons may amount to victimisation.