The Employment Appeal Tribunal (EAT) has found that an Employment Tribunal (ET) erred in law in its consideration of what was required for harassment to be ‘related to’ a protected characteristic, and also erred in its approach to a complaint of victimisation (Carozzi v University of Hertfordshire and Another).

After resigning from her employment, a woman brought claims of constructive dismissal, direct race and religious discrimination, harassment and victimisation. After the ET dismissed her claims, she appealed to the EAT. Three aspects of her appeal were permitted to proceed.

The first concerned the ET’s treatment of her complaint of harassment in relation to comments that had been made about her accent. The EAT noted that Section 26 of the Equality Act 2010 defines harassment as unwanted conduct related to a protected characteristic. This is different from the requirement in direct discrimination claims that treatment be ‘because of’ a protected characteristic. The ET had incorrectly concluded that there must be a mental element in a harassment claim, equivalent to that required in a direct discrimination claim, and had thus effectively imposed a requirement that the harassment be because of the protected characteristic. The EAT noted that harassment could occur without the protected characteristic being the motivating factor. Her appeal on that issue was upheld.

The second aspect of her appeal related to a victimisation claim arising from her employer’s refusal to provide her with notes of a meeting she had attended. Despite finding that the employer had known that the notes included complaints that might aid her claim, the ET had dismissed her claim on the basis that the employer would have done the same to an employee who was considering bringing a claim that did not include a breach of the Act. The EAT found that the correct question for the ET to have asked was whether the decision not to provide the notes was materially influenced by the fact that a complaint of unlawful discrimination had been, or might be, made. The EAT concluded that the ET had erred in law in determining the victimisation complaint.

The third aspect of the appeal, asserting appearance of bias and/or procedural irregularity on the part of the ET, was dismissed. The EAT concluded that the harassment and victimisation claims should be remitted to a differently constituted ET for rehearing.