Authored by: Matt Wishart and Liam Hutton

Carozzi v University of Hertfordshire and anor [2024] EAT 169

Why the case matters

In the recent case of Carozzi v University of Hertfordshire and Ms A Lucas [2024] EAT 169, the EAT has held that the ET erred in its finding that comments made to a former Marketing Engagement and Partnership Manager at the University of Hertfordshire by her manager regarding her accent were not 'related to' her race so as to constitute harassment under the Equality Act 2010.

Section 26(1) of the Equality Act 2010 defines harassment as "A person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic, 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."

The EAT's decision to overturn the initial ET decision that the comments made to Ms Carozzi did not in any way 'relate to' her race is a stark reminder of the fact that even inadvertent comments can be said to "relate to" a person's protected characteristic for the purposes of section 26(1) of the Equality Act 2010. The case has also provided a useful reminder of the difference in the legal tests between direct discrimination and harassment.

The Facts

Ms Carozzi, a Brazilian national, was employed by the first respondent as an Engagement, Marketing, and Partnership Manager from 4 December 2017 until she resigned with immediate effect on 14 January 2019. The second respondent was her line manager. 

Ms Carozzi brought a claim for race related harassment in response to comments that were made to her line manager in relation to her accent. The second respondent commented that the claimant "has a very strong accent, and although her English is very good, it can be difficult for her to be understood and this is an issue when Elaine’s role is one of communication, engagement and partnership working”, and that the claimant should "consider how your accent affects the delivery of your verbal communication, and work on ways to compensate for this by presenting information logically so that you can be easily understood." 

Ms Carozzi resigned from her role, and issued claims for harassment related to race, race discrimination, constructive dismissal, and victimisation.

At first instance the ET dismissed Ms Carozzi's claims. In relation to her harassment claim related to race, referring to the judgment of Unite the Union v Nailard [2019] ICR 29, the ET held that in order for conduct  to be "related to" a protected characteristic for the purpose of a harassment claim under the Equality Act there was a requirement for the alleged harasser to be consciously or unconsciously motivated by the relevant protected characteristic as required for the purposes of direct discrimination. Applying this to Ms Carozzi's case, the ET found that the second respondent's comments "were all to do with the claimant’s intelligibility or comprehensibility when communicating orally" and as a result, were "completely untainted by discrimination". 

Ms Carozzi appealed this finding to the EAT.

The Decision

The question for the EAT to determine was whether criticising someone's accent could constitute unwanted conduct 'related to' race.

Allowing the appeal, the EAT found that the Employment Tribunal had erred in its approach to the test for harassment by requiring the harasser to have a discriminatory motivation, akin to the test for direct discrimination. The EAT confirmed that is not the case, and the requirement for conduct to be "related to" the protected characteristic for a claim of harassment is designed to be relatively broad, covering "all forms of conduct that, properly viewed, has a relationship to the protected characteristic". As a result, there may be circumstances in which harassment can occur even where a protected characteristics did not motivate the harasser.

Comment

This case is a useful reminder for employers that issues concerning accents in the workplace should be handled sensitively, and be mindful of the fact that, as the EAT highlighted in this case, a person's accent may be seen in their eyes an important part of their national or ethnic identity. 

As made clear by the EAT, not every mention of a person's accent will amount to harassment, and this will only be the case where the other elements in section 26(1) of the Equality Act are apparent, but employers should be mindful that even inadvertent comments in relation to an individual's accent may be caught by the harassment legislation.

Employers should review their equal opportunities and harassment policies and consider conducting refresher training for its staff on Equality, Diversity, and Inclusion to ensure that all staff are aware of and take steps to minimise the risk of harassment.