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A recent Employment Appeal Tribunal (EAT) case found that comments about an employee’s accent could be related to race for harassment purposes even if this wasn’t the employer's motivation.

Conduct or comments made that ‘relate to’ a protected characteristic can amount to harassment even in the absence of any motivation

Ms Carozzi was a Brazilian national of Jewish ethnic origin. After resigning from her job with the University of Hertfordshire, she brought several employment tribunal claims, including one for race-related harassment, which centred on comments made about her accent. The tribunal dismissed her claims, finding that comments about Ms Carozzi’s accent had not been motivated by her race, they had been about her intelligibility or comprehensibility when communicating.

On appeal, the EAT considered that the tribunal had been wrong in dismissing her claims. It held that there is no requirement in a harassment claim for a mental element equivalent to that in a claim of direct discrimination. In other words, there may be circumstances where protected characteristics do not motivate harassers.

The EAT also observed that an accent may be an important part of a person's national or ethnic identity. Comments about a person's accent could be related to the protected characteristic of race. Criticism of such an accent could violate their dignity and so constitute harassment under the Equality Act 2010. This does not mean that mentioning a person's accent will amount to harassment. The tribunal would have to consider whether the comment about an accent in a particular case was unwanted and related to race and consider other elements.

Conduct can be related to a protected characteristic either where it is motivated by the protected characteristic, or where, regardless of the conscious or unconscious motivations of the alleged harasser, there is objectively some relationship between the conduct or language used and a protected characteristic. Sexist jokes and racial nicknames are obvious examples, but the unwitting use of, for example, homophobic or transphobic language may also, depending on the circumstances, be capable of meeting the definition of harassment.

What can you do?

  • Foster a culture of respect and inclusion – it is important to create a workplace culture where employees understand the importance of respect for diversity and that this extends to language, accents, and other personal traits. The challenge for employers is fostering a culture where all employees feel included, rather than having individuals either too scared to say anything or firmly entrenching themselves in their right to free speech.  
  • Training is a key part of this culture of respect and inclusion. Involve staff in the training, train them in large and smaller groups so employees feel safe to voice their concerns and fears. Include practical examples of harassment and how to report and challenge it.  
  • Update policies – it is important that policies on bullying, harassment and discrimination are regularly reviewed and kept up to date. These policies ought to be easily accessible to all employees and integrated within your onboarding process to establish expectations from the outset. These policies should not be relegated to unopened handbooks but should form part of the training programme noted in the previous point.  
  • Risk assessments – with the introduction of the Worker Protection Act 2023 and the need for employers to take preventative steps to prevent sexual harassment, risk assessments are being encouraged to assess health and safety risks and the risk of sexual harassment. It may be useful to continue this process and risk assess your workforce identifying areas where other examples of harassment (such as the kind in our recent case) may occur and what steps have been taken, or could be taken, to minimise the risks. Are there areas in your organisation where the ethnic diversity of your workforce is higher than others? Are there areas in your organisation where English is a second language to a proportion of the workforce? Use employee surveys, focus groups, or external audits regularly to identify concerns about workplace interactions.

How can we help?

We recognise the challenge that this creates for employers. We can help with:

  • specific advice on managing a particular issue;
  • advice on meeting the requirements of the new duty to prevent sexual harassment of employees;
  • advice on policies and procedures; and 
  • practical training sessions for employees at whatever level in your organisation.

Please contact me for more information.  

Conduct or comments made that ‘relate to’ a protected characteristic can amount to harassment even in the absence of any motivation.

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Tags

equality, discrimination, employment law, harassment, accents, all sectors