In an important reminder to employers, the Employment Appeal Tribunal ruled that comments about accent may be related to race for harassment purposes.
Background
A recent Employment Appeal Tribunal (EAT) case offers an important insight on handling discrimination and harassment claims. In Miss E. Carozzi v University of Hertfordshire and Ms. Lucas [2024] EAT 169, the Claimant, Miss Carozzi, was an employee of the University of Hertfordshire, who was subject to comments relating to her Brazilian accent during the course of her employment, including that she was difficult to understand.
Claims
The Claimant’s probationary period was twice extended. At a five-month review, the Claimant’s line manager reportedly mentioned that she had “very strong accent”, which made it difficult for her to be understood, and “this is an issue when your role is one of communication, engagement and partnership.” The Claimant resigned and brought multiple claims against the University, including constructive dismissal, direct discrimination on racial and religious grounds, harassment, and victimisation. The Claimant alleged that her line manager’s comments about her accent amounted to harassment based on race. In a victimisation claim, the Claimant also alleged that a HR Business Partner Ms W refused to share notes of an informal meeting because the Claimant may have attempted to use it to support a claim of race discrimination.
Employment Tribunal (ET)
The ET dismissed all claims. In reaching its decision on harassment, the ET relied on a previous Court of Appeal decision in Unite the Union v Nailard 2019, stating that a ‘mental element’ linking the treatment to the protected characteristic is required in a claim of harassment. In relation to victimisation, the ET ruled that Ms W withheld the meeting notes to avoid giving the Claimant ammunition in a potential grievance or claim, but she would have done the same in response to any other employee who intended to make a claim, and therefore this action did not amount to victimisation.
Employment Appeal Tribunal (EAT)
The Claimant appealed the tribunal decision, and her appeal was upheld on both grounds of harassment and victimisation. The EAT found that the ET erred in law in two key areas:
- The harassment claim concerning comments made by the Claimant’s line manager about her accent.
- The victimisation claim, whereby the employer allegedly withheld meeting notes that could have supported the Claimant’s grievance.
As a result, the EAT remitted the two complaints to a newly constituted Tribunal for reconsideration.
Criticism of accent as harassment
Harassment is defined as unwanted conduct related to a protected characteristic, which has the purpose or effect of violating dignity or creating an intimidating, hostile, or offensive environment. In judging the Claimant’s harassment claim, the EAT noted that there may be circumstances whereby harassment is not motivated by a protected characteristic. Conduct can therefore still be “related to” a protected characteristic even if the perpetrator did not make such a link. As a consequence, stating that someone’s accent is hard to understand may relate to a national or ethnic origin, and therefore be linked to race.
Victimisation and protected acts
Victimisation is defined as subjecting someone to a detriment because they performed a “protected act”. The EAT criticised the ET judgment, as employers cannot justify detrimental treatment by claiming they would treat others similarly. The HR Business Partner took action to safeguard the employer’s legal position, but such action can also constitute victimisation if it disadvantages the employee. In such circumstances, employers must demonstrate non-discriminatory reasons for their actions.
Advice for Employers
There are a number of lessons for employers from the EAT’s ruling. Employers should ensure that they follow a fair procedure when managing employee grievances, and not engage in actions which appear retaliatory, even if grievances appear to be unfounded. Employers should take care to protect the rights of employees, while maintaining procedural fairness.
The EAT acknowledged that employees are expected to demonstrate a degree of resilience in workplace interactions, but employers must also ensure that conduct does not violate dignity or create an oppressive environment. As a result, employers should establish clear policies to define acceptable workplace behaviour, alongside mechanisms for reporting concerns. Criticising an employee’s accent is unlikely to be acceptable and should be avoided.
Employers should consider conducting sensitivity training, so that managers learn to recognise how behaviours, even if unintentional, might be perceived as harassment linked to national identity or ethnicity. This in turn should help contribute towards an environment of mutual trust and respect.
Conclusion
The case highlights the delicate balance employers must strike between ensuring a professional workplace and respecting employees’ rights under the Equality Act. Employers who adopt proactive measures, with a focus on training, clear policies, and fair processes, will develop a more inclusive work environment and reduce organisational risk.
How we can help
For further information, or to discuss the issues raised within this case, please contact us to speak to a member of our Employment Team.
