The general definition of harassment in section 26 of the Equality Act 2010 simply requires that the conduct in question be “related to” a relevant protected characteristic. The test of conduct “related to” a protected characteristic is wider than the test for direct discrimination, which requires treatment “because of” a protected characteristic.
Additionally, the conduct must have the purpose or effect of violating the person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. In deciding whether conduct should be regarded as having that effect, an ET must take into account the person’s perception of the conduct, the context in which the conduct takes place, and whether it is reasonable for the conduct to have that effect.
We have summarised below two cases that demonstrate the loose connection that is required when determining whether conduct is “related to” a protected characteristic:
Carozzi v University of Hertfordshire [2024] EAT 169
Facts
The Claimant was a Brazilian national of Jewish ethnic origin and employed at a university. The Claimant resigned before completing her probationary period (which was extended twice) and brought a claim for race-related harassment centred on comments that had been made about her ‘strong’ Brazilian accent being difficult to understand. She also brought a victimisation claim which we do not intend to detail here.
Decision
The ET dismissed her claims on the basis that the comments regarding the Claimant’s accent were not motivated by her race. Rather, they were about her intelligibility or comprehensibility when communicating. The Claimant appealed this decision.
The EAT disagreed with the ET conclusion and held that it wasn’t correct to conclude the comments were not harassment just because they were not motivated by her race. The EAT found that such comments could still amount to harassment as they still could be “related to” race and have remitted the claim back to a fresh ET to be reconsidered.
1) British Bung Manufacturing Ltd 2) Mr J King v Mr A Finn [2023] EAT 165
Facts
The Claimant worked in a small business, predominantly male, and ‘industrial’ language was commonplace. The Claimant was threatened by a colleague who also called him a “bald C-word”. This had been reported and a warning given. However, the same colleague threatened the Claimant again and the Claimant said that if he wasn’t dismissed “that would be it”. When the Claimant next returned to work he had presented a ‘witness statement’ which had been typed up by his son on official police stationary as he was a police officer. The Claimant was subsequently dismissed on grounds for falsely representing that the matter had become a police matter. He brought claims which included unfair dismissal (which we will not detail here) and harassment related to sex.
Decision
It was held that words said to the Claimant amounted to harassment related to sex. It was unwanted, since it was unwelcome and uninvited, and the person who made the comments admitted that his intention was to threaten the Claimant and insult him creating an intimidating, hostile, degrading, humiliating or offensive environment. There was the necessary connection between the word “bald” and the protected characteristic of sex as baldness is more prevalent in men than women. The EAT rejected the argument that for unwanted conduct to be related to sex, it must relate to a matter which is inherent in one sex and which applies to no one of the opposite sex.
These two cases are good examples of how “…related to…” can be interpreted in quite a wide way by ETs, and also (in the case of Ms Carozzi) how comments which an employer might make as an example to justify negative feedback, which are not directly about race, and without any intention at all to cause offence might still constitute harassment. Time will tell on that one when the remitted ET makes a decision, and it will be interesting in particular to see whether the ET concludes that it was reasonable for the comments to have the effect on Ms Carozzi of creating a hostile, intimidating etc environment.
In Mr Finn’s case the evidence was that the person making the comment to him had intended to cause offence and upset so that part of the harassment definition was never in question. However, if they hadn’t used the word “bald” in their abusive comment, and had only used the “C-word”, it would have been less likely that the conduct would have been found by the ET to have amounted to harassment related to sex even though the perpetrator would still have intended to (and had) upset Mr Finn.