Comments about an accent can constitute harassment

The Employment Appeal Tribunal (EAT) has confirmed that comments about an employee's accent can constitute harassment related to race if the effect of the conduct violates an employee's dignity - regardless of whether that was the intention.

Background

Discriminatory harassment can occur if an individual is:

• subjected to unwanted conduct related to age, disability, gender reassignment, race, religion or belief, sex, or sexual orientation, or they are subjected to unwanted conduct of a sexual nature; and
• the conduct has the purpose or effect of violating their dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

Where there is no intention to offend, in deciding whether the conduct has the effect of causing offence, you should consider the alleged victim's perception, whether it was reasonable for the conduct to have the alleged effect, and any other relevant circumstances (such as the working environment and the relative power and seniority of those involved).

Individuals can claim victimisation if they are subjected to a detriment because they have brought discrimination proceedings, made an allegation of discrimination, given evidence or information in connection with discrimination proceedings, or done anything else by reference to discrimination legislation.

The facts

Ms Carozzi, a Brazilian national of Jewish ethnic origin, was employed by the University of Hertfordshire. She resigned before completing her probationary period and raised claims against her employer and line manager for race-related harassment and victimisation.

Ms Carozzi alleged that her line manager had made comments about her verbal communications and the fact that she was difficult to understand because of her accent. She submitted this amounted to harassment related to race. The victimisation claim related to the refusal by the university's HR representative to provide notes of an informal meeting in case it was used to support a claim against the university for race discrimination.

The decision

The employment tribunal dismissed the claims and concluded that the line manager's comments were not related to or motivated by race, instead, they were about understanding Ms Carozzi's verbal communication. In relation to the victimisation claim, the tribunal decided that the university would have treated any other employee who had expressed an intention to pursue any claims in the same manner. 

Ms Carozzi appealed. The EAT allowed the appeal and sent the claims back to be heard by a new tribunal.

The EAT indicated that comments about an individual's accent can constitute harassment related to race, regardless of whether that was the intention:

• Looking at the statutory definition, it is clear that the conduct complained of only needs to be related to the protected characteristic – there does not need to be a 'mental element'. It covers situations where the harassment is intentional and where it is inadvertent.
• It is possible that harassment can occur without any motivation on the part of the harasser at all. The EAT noted that an individual may unknowingly use a word that is offensive to those who hold a particular protected characteristic without being aware of the historic reasons for why it was offensive.
• The EAT highlighted that an accent may be an important part of a person’s national or ethnic identity. Comments about a person’s accent could be related to the protected characteristic of race and criticism of such an accent could be unwanted and violate dignity.

In relation to the victimisation claim, the EAT decided that the tribunal was wrong to ask whether the position would have been the same if someone had brought a different type of claim. The correct question was whether the decision not to provide the meeting notes was to a material degree influenced by the fact that Ms Carozzi had made or might make a discrimination complaint.

Key lessons

• It is important to be aware that it is possible for harassment to occur even if a harasser does not intend to cause offence but this is the effect.
• This case is another reminder of the benefits of having effective, well-communicated policies and undertaking regular equality, inclusion and diversity training with examples of what might constitute harassment (see our earlier blog).
• You are unlikely to be able to comply with the new duty to take reasonable steps to prevent sexual harassment unless you carry out a risk assessment (read our earlier blog). Risk assessments may also assist in reducing the risks of other forms of harassment.
• This decision highlights the need to take care with meeting notes, as they might need to be disclosed under a data subject access request or during tribunal proceedings. If notes are requested, consider whether disclosing them is appropriate and, if not, whether such a refusal might amount to victimisation.

For more information about anything discussed in this blog, please contact a member of the Brodies Employment and Immigration team. Workbox by Brodies, our HR and employment law site, has practical information and resources on bullying and harassment, including example policies and a risk assessment.