In Carozzi v University of Hertfordshire & Anor [2024] EAT 169, the Employment Appeal Tribunal (the "EAT") found that comments about an employee's non-British accent were related to her race. In doing so, the EAT provided useful guidance on the proper approach to be taken when analysing claims of harassment and victimisation.
What was Carozzi about?
The Claimant, Miss Carozzi, was employed by the University of Hertfordshire and resigned during her (extended) probation period, after raising complaints about how her colleagues were treating her because of her Brazilian nationality and Jewish identity. Specifically, Miss Carozzi claimed that, for over a year, her colleagues had made negative assumptions about her credibility and professional capabilities due to her accent, religion and cultural background. She brought claims to the Employment Tribunal (the "ET") for constructive dismissal, direct race discrimination, harassment, and victimisation. After the ET dismissed her claims, Miss Carozzi appealed to the EAT on the basis that, among other things, the ET had erred in its approach to her harassment and victimisation claims.
What is harassment and what did the EAT decide?
Under s.26(1) of the Equality Act 2010 (the "EqA"), a person harasses another if they engage in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of violating that other person's dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for them. The EqA, therefore, identifies two possible routes to establishing harassment: (1) conduct that has the purpose of violating another's dignity; and (2) conduct that has that effect but not the purpose. Cases of the former require a particular mental state on the part of the perpetrator, in that they must intend to harass their victim, whereas cases of the latter do not.
However, as the EAT observed, there is no requirement that the perpetrator have a particular mental state in relation to the protected characteristic to which the unwanted conduct is said to be "related". In that sense, the "related to" component of a harassment claim differs from the "because of" component of a direct discrimination claim. For conduct to be "because of" a protected characteristic, that protected characteristic must be operating (consciously or unconsciously) on the mind of the putative discriminator. By contrast, conduct can be "related to" a protected characteristic without that protected characteristic being in any way the perpetrator's motivation for the conduct in question. Further, conduct which is "because of" a protected characteristic will also be "related to" it; but the opposite is not necessarily true.
Against that backdrop, the EAT decided that the ET was wrong to dismiss Miss Carozzi's harassment claim on the basis that her colleagues' comments about her accent were not motivated by her nationality or ethnicity. In doing so, the ET had improperly imported a mental element into the question of whether the conduct was "related to" Miss Carozzi's race. The ET had essentially required the unwanted conduct to be "because of" a protected characteristic, which was to confuse direct discrimination with harassment.
What is victimisation and what did the EAT decide?
Under s.27(1) EqA, a person victimises another if they subject that person to a detriment because that person does a "protected act" or because they believe that person has done or may do a protected act. For these purposes, a "protected act" includes, among other things, alleging that a person has contravened the EqA, and bringing proceedings under the EqA. A claim for victimisation would succeed if the detriment complained of was influenced to a material degree by the fact that a protected act had or might be made. There is no requirement to compare how the employer would have treated another employee who did not do a protected act.
In the ET, Miss Carozzi claimed that she was victimised when her employer refused to share meeting notes with her which, so her employer felt, could have given Miss Carozzi "ammunition" for a discrimination claim. The ET dismissed this claim, finding that her employer would have done the same with any other employee who had indicated an intention to make a non-EqA claim (such as for constructive dismissal). On appeal, the EAT determined that the ET had erred in analysing Miss Carozzi's claim on the basis of a comparator model. The ET should have asked itself whether the employer's decision not to provide the meeting notes was influenced to a material degree by the fact that Miss Carozzi had or might make a complaint of unlawful discrimination. How the employer would have treated other employees was irrelevant to this question.
What can employers learn?
This case is a helpful reminder of the correct approach to certain aspects of harassment and victimisation claims. Specifically, when dealing with allegations of harassment, employers need to be aware of the extent to which harassment can occur entirely by accident. Not only can an employee harass a colleague without intending to have that effect upon them, but they can do so even if they never meant for the conduct in question to be related to a protected characteristic. Similarly, in the context of victimisation, Carozzi shows that employers should avoid trying to be too subtle with arguments around causation. The test is simply whether the protected act materially influenced the treatment complained of, irrespective of how other employees might have been treated.
For further guidance on these and any other employment-related matters, please reach out to your usual Mishcon contact or a member of our Employment team.