Key takeaways

• The decision highlights the importance of exercising sensitivity when interacting with others in the workplace.
• The test for unlawful harassment is broader than the test for direct discrimination. A person can be liable for unlawful harassment even if they did not intend to intimidate, degrade or humiliate the complainant.
• Together with the new duty to prevent workplace sexual harassment, the case reiterates that employers must implement anti-harassment policies and training in order to reduce the risk of harassment occurring.
• For advice or to discuss what this means for you and your business, please get in touch with your usual Baker McKenzie contact.

In more detail

The case concerned a claim of unlawful racial harassment brought against the claimant's former employer, the University of Hertfordshire.

The claimant was a Brazilian national of Jewish ethnic origin. During her employment by the University, her manager made comments about the claimant's verbal communications and how they were difficult to understand due to her accent. Her probationary period was extended twice and she resigned before completing it. She brought a number of tribunal claims, including race-related harassment for comments about her accent.

The employment tribunal dismissed her claims, finding that the manager's comments were not motivated by her race but the result of an assessment of the claimant's strengths and weaknesses during her probationary period.

Employment Appeal Tribunal

The Employment Appeal Tribunal (EAT) allowed the claimant's appeal, and remitted the harassment claim for a rehearing by another tribunal.

A person harasses another (B) if they engage in unwanted conduct "related to a relevant protected characteristic which has the purpose or effect of violating B's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B" (section 26, Equality Act 2010).

This test does not require a mental element akin to a direct discrimination claim. It will cover situations where the harassment is intentional and where it is inadvertent. The EAT gave the example of how an individual might use a word that is offensive to people with a particular protected characteristic without being aware of the historic reasons for why it was offensive. In such circumstances, the conduct could still be "related to a relevant protected characteristic" and might amount to unlawful harassment if it was unwanted and had the effect of violating the complainant's dignity. Whether that would be the case would be assessed in the light of the perception of the complainant, the surrounding circumstances and whether it was reasonable for the conduct to have that effect.

The EAT noted that a person's accent can be an important part of their national or ethnic identity. Comments about a person's accent may be "related to" the protected characteristic of race, and criticism of such an accent could violate a person's dignity, depending on the relevant circumstances.

Lessons for employers

The decision confirms that a person may be liable for unlawful harassment in the workplace even where their conduct was unintentional.

Conduct or comments related to sex, disability or sexuality are obvious examples of where this risk might manifest. The EAT's example of how a word might be used without a full understanding of its historic significance also highlights the importance of training on diversity and inclusion, including the use of language in the workplace.

This decision, when considered together with the new duty on employers to take reasonable steps to prevent workplace sexual harassment, underscores the need for employers to take a proactive approach to the issue and anticipate the circumstances in which harassment may occur, even if unintentional.

Carozzi v. University of Hertfordshire and another [2024] EAT 169