Carozzi v University of Hertfordshire & Anor

For harassment under section 26 of the Equality Act 2010, conduct may be related to a protected characteristic without being motivated by it. The expression is broader than the causation requirement for direct discrimination. A tribunal must identify features of the facts which establish the relationship, then determine the remaining statutory elements, including the purpose or effect on dignity.

Comments about an accent may be related to race because an accent may form part of national or ethnic identity. Whether they amount to harassment remains a fact-sensitive question.

In victimisation, the question is whether the protected act materially influenced the detriment. It is not answered by comparing the claimant with a person who made a non-protected complaint.

The claimant resigned while her extended probation remained incomplete. She brought claims including constructive dismissal, race and religious discrimination, harassment, and victimisation.

The Employment Tribunal dismissed the relevant complaints. On a limited appeal, the claimant challenged the Tribunal’s treatment of harassment allegations concerning her accent, the dismissal of one victimisation complaint concerning meeting notes, and alleged procedural unfairness and apparent bias.

The central issues were the meaning of conduct related to a protected characteristic for section 26 harassment, the causation and detriment inquiries in victimisation, and whether the Tribunal’s conduct gave rise to apparent bias.

1. Appeal allowed in part. The harassment complaints concerning the claimant’s accent and one victimisation complaint were remitted for rehearing before a differently constituted Employment Tribunal. The procedural-bias and unfairness grounds were dismissed.

2. The Tribunal erred by treating section 26 of the Equality Act 2010 as requiring a mental element equivalent to the requirement that direct discrimination be because of a protected characteristic. Conduct can be related to a characteristic because of that characteristic, but that is not the sole route by which the statutory relationship may be established. The Tribunal must identify the factual feature or features which establish that relationship.

3. An accent can be an important element of national or ethnic identity. Comments criticising it may therefore be related to race. That conclusion does not itself establish harassment: the tribunal must still decide whether the conduct was unwanted and whether it had the statutory purpose or effect. Where only effect is alleged, it must apply section 26(4), considering the claimant’s perception, all other circumstances, and the reasonableness of that effect.

4. On victimisation, the Tribunal asked the wrong comparative question. It should have decided whether refusal to provide the meeting notes was materially influenced by the fact that an allegation of unlawful discrimination had been, or might be, made. It also failed properly to address whether withholding notes might reasonably disadvantage an employee seeking to resolve a grievance without proceedings.

5. The alleged interventions during the hearing did not establish a real possibility of bias or procedural unfairness. Although the Employment Judge’s initial view on the accent issue did not meet that threshold, it supported remission to a different panel, particularly given the fundamental error in the Tribunal’s approach to section 26.

• Employment Appeal Tribunal: Allowed the appeal in part and remitted the accent-related race-harassment complaints and one victimisation complaint for rehearing before a differently constituted Employment Tribunal: [2024] EAT 169.
• Employment Tribunal: Employment Judge Hyams sitting with lay members dismissed the claims following a hearing in June and July 2021; judgment was sent on 10 August 2021.