Harassment and victimisation

In Carozzi v University of Hertfordshire, the EAT confirmed the legal position in relation to two issues that are common areas of debate in discrimination cases.

The Claimant in this case made complaints about harassment that related to comments made about her accent. She also made a claim of victimisation in relation to the University’s HR representative refusing to share notes of a meeting with her because she might then use them against the University in a discrimination claim.

The Tribunal dismissed her claims, finding that:

• Comments about her accent were not harassment because they had not been motivated by her race and were “all to do with the claimant's intelligibility or comprehensibility when communicating orally”. They were not the same as cases in which harassment has been found where an individual’s accent has been mocked.
• The refusal to provide a copy of the notes was not an act of victimisation because the HR representative would have done the same to an employee who she felt was preparing to bring any other type of Tribunal claim and it was not therefore linked to a threatened discrimination claim.

The EAT upheld the Claimant’s appeal, finding:

• For an act to amount to harassment on grounds of race, it must be “related to” race but need not be intentional or motivated by race. They cited the example of a colleague using a word that is offensive to people of a certain race because of its historical connotations. Even if the colleague did not know of those connotations, if those historical connotations related to race and the comment had the effect of offending the individual, then this could amount to harassment
• In relation to the victimisation claim, it was not relevant to consider what the HR representative would have done with an individual who had threatened a non-discrimination claim, the issue was whether the action (of withholding notes) was to a material degree influenced by the fact that the Claimant might make a complaint of discrimination

The Claimant’s claims were therefore remitted to a different Employment Tribunal for them to consider afresh.

Whilst this case dealt with a racial harassment case, its principles apply to all harassment claims.  In particular, the lack of the requirement of a discriminatory motive in harassment cases is an important message that should be delivered by all employers currently training their employees in preventing sexual harassment.