In Carozzi v University of Hertfordshire, the EAT has ruled that comments about an employee’s accent could be harassment under the Equality Act 2010 even though they were not motivated by her race.
Harassment is defined in section 26 of the Equality Act as unwanted conduct related to a protected characteristic that has the purpose or effect of violating an individual’s dignity or of creating an intimidating, hostile, degrading, humiliating, or offensive environment for them. Tribunals must take into account the perception of the victim, the other circumstances of the case, and whether it is reasonable for the conduct to have that effect. As this case highlights, the definition of harassment is wider than the test for direct discrimination, which requires treatment ‘because of’ a protected characteristic (rather than ‘related to’).
Victimisation may occur where an employer subjects an employee to a detriment because they have done or may do a protected act such as bringing proceedings under the Equality Act 2010.
Ms Carozzi, a Brazilian national of Jewish ethnic origin, was employed by the University of Hertfordshire in a marketing role but resigned before the end of her probationary period, which had been extended twice. She brought a number of Employment Tribunal claims, including constructive dismissal, race and religious discrimination, harassment, and victimisation.
All of Ms Carozzi’s claims were dismissed by the Tribunal. She was given permission to appeal to the EAT, and two grounds of her appeal are of wider interest.
First, Ms Carozzi challenged the Employment Tribunal’s ruling that since comments about her accent were observations about her intelligibility or comprehensibility, rather than being racially motivated, they could not amount to race-related harassment. The EAT upheld this part of her appeal. Harassment can occur under the Equality Act definition even when the harasser is not motivated by a protected characteristic. Accent can be an important part of a person’s national or ethnic identity. It follows that comments about someone’s accent may be related to the protected characteristic of race. Whether or not those comments in fact amount to harassment will depend on whether the other conditions set out in the definition are met, including whether the comments were unwanted and had the purpose or effect of violating dignity or creating an offensive environment.
Secondly, Ms Carozzi appealed against the Tribunal’s rejection of her claim that the University’s refusal to provide meeting notes amounted to victimisation because it was linked to concerns that she might bring a discrimination claim. The Tribunal had ruled that this was not victimisation because the university would have withheld the notes from an employee who might bring a claim of any type, not just a claim of discrimination. Allowing this ground of appeal, the EAT held that this was the wrong test. The Tribunal should have considered whether the decision not to provide the notes was influenced to a material extent by the fact that a discrimination claim had or might be made. The EAT also disagreed with the Tribunal’s conclusion that the refusal could not amount to a detriment, noting that Ms Carozzi could reasonably view the refusal as a disadvantage.
Ms Carozzi’s harassment and victimisation claims were remitted to a fresh Employment Tribunal for reconsideration of these issues.
This case highlights the importance of dealing with grievances and complaints fairly and transparently to minimise the risks of victimisation and discrimination claims. The EAT has also confirmed that there is no requirement in a harassment claim for a ‘mental element’ as there is in a direct discrimination claim. This means that comments about personal attributes may constitute harassment if they are related to a protected characteristic such as race or sex even if there is no discriminatory intent. In order to ensure that all staff understand the wide definition of harassment, it is vital to implement comprehensive equality and diversity policies and to organise regular tailored training. These measures are also necessary to comply with the new duty to take reasonable steps to prevent sexual harassment, which will be extended to ‘all’ reasonable steps when the Employment Rights Bill comes into force in 2026. The Bill will also introduce employers’ liability for third-party harassment in respect of all types of harassment.
