UK: EAT decisions highlight importance of comprehensive staff training on harassment

A recent EAT ruling serves as a reminder that an employee can unlawfully harass a colleague relating to their protected characteristic even if the characteristic was not part of their motivation and they did not appreciate the connection or that there was any offensive connotation.   In Carozzi v University of Hertfordshire the EAT held that comments about an employee's accent, which were motivated by difficulty understanding her rather than her race, could nevertheless be 'related to' race and therefore potentially unlawful harassment (assuming a proscribed harassing effect is established, taking into account the target's perception, whether it is reasonable for the conduct to have that effect, and the other circumstances).  The EAT noted that accent may be an important part of a person's national or ethnic identity and such comments could, therefore, be related to race.  The issue was remitted to the tribunal to reconsider, with the EAT noting that while it is in no-one's interest that colleagues should constantly be walking on egg-shells and employees can be expected to demonstrate a degree of robustness, employers and employees can also be expected to take greater care in how they speak and behave at work than they might in their social life - in this respect 'bringing your whole self to work' is not always appropriate.

The breadth of what could amount to harassment is also illustrated by the EAT's ruling in British Bung Manufacturing Co Limited v Finn. The EATheld that unpleasant references to a male employee's baldness were 'related to sex' because baldness is more prevalent among men than women and so more likely to be directed towards men.  It did not matter that baldness is not exclusive to men. 

These cases highlight the risk of employees unwittingly making comments which they do not appreciate are 'related to' a protected characteristic and therefore the importance of effective staff training in this area (also important in light of the new duty to take reasonable steps to prevent sexual harassment in force from October 2024).

Carozzi also demonstrates the need for managers to exercise considerable caution when dealing with an employee who is claiming discrimination, to avoid additional victimisation claims.  The employee claimed that the HR manager's decision not to provide her with a copy of meeting notes was unlawful detrimental treatment as it was motivated by a desire to avoid giving her ammunition for her discrimination complaint.  The EAT held that the tribunal had erred in considering that this could not be victimisation on the basis that the notes would also have been withheld from someone bringing a different type of claim;  the correct question was whether the decision was to a material degree influenced by the fact that a complaint of unlawful discrimination had or might be made.  The tribunal had also erred in concluding that withholding the notes could not be a detriment on the basis that the employer was simply taking reasonable steps to protect its position in litigation.  The tribunal should have considered whether an employee who brings a grievance, that might resolve matters without the need for a tribunal claim, might reasonably consider themselves disadvantaged by not being provided with the meeting notes.  This issue was also remitted to be reconsidered.