Harassment and Victimisation in Focus: Carozzi v University of Hertfordshire

In a recent appeal case, the Employment Appeal Tribunal highlighted the correct approach to analysing claims of harassment and victimisation.

Background

The claimant, a Brazilian national of Jewish ethnic origin, resigned from her role with the University prior to the completion of her probationary period (which had been extended on two occasions). Following resignation, she brought a complex claim before the tribunal, which included harassment and victimisation claims.

The harassment claim was linked to the protected characteristic of race and focused on comments made regarding the claimant’s accent. The victimisation claim asserted that the University had refused to share notes with her following a meeting, given that they may have been used against the University in proceedings for race discrimination.

At the tribunal, the claims were dismissed. It was held that the comments about the claimant’s accent were not motivated by race, as there was no mental element present. Concerning the victimisation claim, the tribunal found that the University would have behaved the same with any other employee who indicated they might make a tribunal claim not linked to a breach of the Equality Act 2010 (the Act), in not supplying meeting notes that might provide ‘ammunition’ in tribunal proceedings. The tribunal did not feel that the treatment could be detrimental.

The Employment Appeals Tribunal

On appeal, the EAT found that the employment tribunal had was wrong to determine that comments about Miss Carozzi’s accent did not amount to harassment under the Act on the basis that they were not motivated by the claimant’s race. The EAT outlined that there is no requirement for a mental element equivalent to that necessary in a claim of direct discrimination in determining whether conduct is ‘related to’ a protected characteristic for harassment. Accent can be an important part of a person’s ethnic or national identity, and criticism of an accent could violate dignity.

In respect of the victimisation claim, the tribunal should have considered whether to a material degree, the decision not to provide the meeting notes was influenced by the fact that an unlawful discrimination complaint had or might have been made. The test for detriment is ‘whether an employee might reasonably consider themselves to be disadvantaged in the workplace as a result of the treatment’. Whilst prior case law has highlighted that an employer taking reasonable steps to maintain its position in discrimination proceedings is not detrimental treatment of the potential claimant, the ET had failed to consider whether tribunal proceedings were even likely to occur in this instance.

Comment for employers

Employers should implement and circulate clear policies on equity, diversity and inclusion and anti-harassment. Regarding harassment specifically, this case reiterates that even where an employee did not intend to violate another’s dignity, their conduct can still have this effect. This should be made clear in an employer’s policies.

Regular training will be key to educate all employees and ensure that they understand what is and is not acceptable conduct.

Employers should have a zero-tolerance approach to any discrimination, victimisation, bullying and harassment, and foster an inclusive working environment. Clear reporting mechanisms must be in place to allow an employee to raise any concerns.