The Employment Appeal Tribunal (EAT) has recently considered the case of Carozzi v University of Herfordshire and another, concluding that an employment tribunal had been wrong to find that comments about an employee’s non-British accent did not amount to racial harassment because they were motivated by intelligibility rather than race.
For harassment claims, there is no requirement for the conduct to be “because of” the protected characteristic, the Equality Act 2010 only requires it to be “related to” the protected characteristic. Accent can be part of a person’s national or ethnic identity and therefore, comments relating to accent could be related to race.
In addition, the EAT concluded that the tribunal had been wrong to dismiss the employee’s victimisation claim. The claim had been founded on the Respondent’s refusal to share meeting notes with the employee, as they could have been used as ‘ammunition’ for a discrimination claim. The tribunal dismissed the claim on the basis that the employer would have refused to provide the notes irrespective of the type of employment tribunal claim the employee had intimated they would make (even if this was not a claim related to the Equality Act 2010).
The EAT concluded that this was the wrong test – what the tribunal should have asked itself is whether the decision not to provide the notes was, to a material degree, influenced by the fact that a complaint of unlawful discrimination might be made.
Based on the above, the Claimant’s harassment and victimisation claims were remitted to a fresh tribunal.
