Unknowingly using words people perceive as ‘offensive’ can be harassment, judge says

Unknowingly using certain words or phrases that people with relevant protected characteristics perceive to possess ‘offensive’ characteristics could amount to harassment under section 26 of the Equality Act 2010 (EqA), a senior circuit judge of the Employment Appeal Tribunal has said.

Judge James Tayler made the comments in his ruling on a case involving a university employee who sued after allegedly suffering racial discrimination and harassment over comments about her “strong” Brazilian accent.

Elaine Carozzi initially brought a claim in the Employment Tribunal against the University of Hertfordshire in 2021, alleging constructive dismissal, direct race discrimination because of her Brazilian nationality, direct religious discrimination, harassment, and victimisation.

The marketing manager made a catalogue of allegations against the university, including that Annabel Lucas, her manager, harassed her, using “my accent, religion, and cultural background as a measuring stick to deduct my credibility and professional capability”.

Although Ms Carozzi had a good grasp of the English language, managers at the institution allegedly struggled to understand what she was saying.

Ms Carozzi was on probation at the university after joining in December 2017, but said the probation kept getting extended over concerns about her communication – allegedly due in part to her pronunciation.

She told the tribunal that over a period of 13 months, Ms Lucas “started making derogative remarks about my attitude, culture, and my Brazilian accent”, and that she “wanted to use my Brazilian origins, including my accent, to discredit my character and professionalism”.

Ms Carozzi also claimed her line manager “told me that ‘the team’ was having issues with my ‘very strong accent’, and therefore they didn’t want to invite me to important meetings and events”.

“I have a Brazilian accent,” she added. “I can’t change my background, my ethnicity, and my national origins.”

All of Ms Carozzi’s claims were dismissed by the original tribunal, but the EAT has now said that it made mistakes in three of its judgments.

The first mistake concerned the Employment Tribunal’s treatment of the complaint of harassment under section 26 of the EqA, which concerned the claimant’s accent. The second was a single ground challenging the dismissal of a complaint of victimisation. The final part was made up of grounds alleging procedural bias or unfair treatment of the claimant by the Employment Tribunal.

On the first mistake, Judge Tayler found that the original panel “erred in law” when it ruled that the University of Hertfordshire did not racially harass Ms Carozzi.

The tribunal was told Ms Lucas said at a probation meeting for the marketing manager:

“You have a very strong accent, and although your English language is very good it can be difficult for you to be understood, and this is an issue when your role [is] one of communication, engagement and partnership.”

The original Employment Tribunal ruled that Ms Carozzi’s accent “had nothing whatsoever to do with the claimant’s race in the sense that the motivation… for making them was in no way or to no extent the claimant’s race,” and that therefore Ms Lucas’s comments did not constitute harassment.

Analysing the complaint in respect of the extension of the claimant’s probationary period, the Employment Tribunal articulated a similar understanding of what is meant by harassment, stating:

“We were completely satisfied that Mrs Lucas’s stance… was the result of a genuine perception of the claimant’s strengths and weaknesses in the post in which she was a probationary employee, which was in fact objectively justified but was in any event in our view completely untainted by discrimination because of the claimant’s race or religion.”

However, Judge Tayler has said that the original tribunal “erred in law” on this point.

Commenting on or criticising the way someone from another country or ethnic group speaks can potentially breach employment law, he said, because even though Ms Carozzi’s race did not “motivate” Ms Lucas’s comments, it was still connected and therefore potential harassment.

Judge Taylor went on to observe that because section 26 of the EqA deals with two possible situations – (1) conduct that has the purpose of violating dignity, or (2) conduct that has that effect (but not the purpose) – it follows that the provision “allows for the possibility that A deliberately violates the dignity of B or A does so without that intention, but the conduct has the effect of violating B’s dignity” (emphasis added).

“Treatment may be related to a protected characteristic where it is ‘because of’ the protected characteristic,” he continued, “but that is not the only way conduct can be related to a protected characteristic, and there may be circumstances in which harassment occurs where the protected characteristic did not motivate the harasser.”

Citing the example of a person who unknowingly uses a word that is offensive to people who have a relevant protected characteristic because it is “historically linked to oppression of people who have the protected characteristic”, the ruling continues:

“The fact that the person, when using the word, did not know that it had such a meaning or connotation, would not prevent the word used being related to the protected characteristic. That does not necessarily mean the person who used the word would be liable for harassment, because it would still be necessary to consider whether the conduct violated the complainant’s dignity… That said, there could be circumstances in which, even though a word was used without knowledge of the offensive connotations, having considered the factors in sub-paragraph (4) [of section 26 of the EqA], the perception of the recipient, other circumstances and whether it is reasonable for the conduct to have that effect, the use of the word would nonetheless amount to harassment under section 26 of the Equality Act.” (Emphasis added.)

Concluding, Judge Tayler said that Ms Carozzi’s complaint of harassment, along with her complaints of, respectively, victimisation and unfair treatment, should be heard by a new tribunal.

Reacting to the EAT decision on LinkedIn, Ms Carozzi said: “They thought someone with a ‘strong accent’ would be an easy target. Surprise!

“This Brazilian accent came with a backbone of steel. They didn’t realise they were up against someone who wouldn’t back down.

“Never underestimate someone just because they speak differently,” she added. “Sometimes the strongest voice is the one they tried to silence.”

A University of Hertfordshire spokesperson said: “There have been no findings of discrimination in relation to Ms Carozzi’s accent.

“The University is committed to creating a diverse, inclusive and welcoming environment for our global community spanning 140 nationalities so that everyone, no matter their background, feels welcome and safe.”