Racial harassment: comments about a person’s accent may be unlawful

Ms Carozzi, a Brazilian national of Jewish ethnic origin, brought a number of claims against the University of Hertfordshire including for race-related harassment. Her harassment claim centred on her manager’s comments about her strong Brazilian accent. The Employment Tribunal dismissed her claim, ruling that the manager’s comments about her accent had not been motivated by her race but by difficulties in understanding her when communicating orally. They were not therefore related to race.

The Employment Appeal Tribunal ruled that the Employment Tribunal had taken the wrong approach. When considering whether the comments were related to race it considered that a mental element is needed so that harassment could only be made out if the comments were “because of” race. The Employment Appeal Tribunal ruled that no mental element is required. Conduct may be related to a protected characteristic where it is "because of" the protected characteristic, but equally it may be related to race even where the alleged harasser is not motivated by race.

The Employment Appeal Tribunal observed that a person’s accent may be an important part of their national or ethnic identity and that comments about a person's accent can be related to their race. Criticism of a person’s accent can violate their dignity. Obviously, that does not mean that any mention of a person's accent will amount to harassment. Consideration will have to be given in any case to whether a comment about an accent was unwanted, related to race and whether the other elements are harassment are made out, such as whether the conduct had the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

The case was sent back to a different employment tribunal to determine whether racial harassment was made out in this case.

What does this mean for employers?

Schools should note that the Equality Act’s harassment provisions are wide in scope. They cover conduct “related to” a protected characteristic, which is much wider than conduct “because of” a protected characteristic. Just because a person’s conduct is not motivated by a protected characteristic does not mean that it cannot be unlawful harassment. Provided that there is a connection between the treatment and a protected characteristic then that is sufficient. Harassment policies and training should be updated to reflect this broad scope. Schools should also note that this applies equally to the other protected characteristics of age, disability, race, religion or belief, gender reassignment and sexual orientation.

Nevertheless, as the Employment Appeal Tribunal pointed out in this case, not all comments about a person’s accent will amount to unlawful harassment. In particular, where comments are not intended to violate the victim’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment, a tribunal must consider whether it was reasonable for them to have that effect on the victim, taking into account the victim’s perception and the other circumstances of the case.

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