Legal tests for Harassment and Victimisation

In  Carozzi v University of Hertfordshire the Employment Appeal Tribunal (EAT) held that the original Tribunal misapplied tests for harassment and victimisation when they found against a Claimant.

Harassment

The Judge in the original Tribunal had held that to succeed in a claim of harassment there needed to be a “mental element”.  The original Tribunal had effectively found that harassment related to the Claimant’s accent did not succeed because comments must relate to a protected characteristic so that essentially the treatment / harassment was because of that protected characteristic.  The EAT held that was wrong and said that whilst it may be that the treatment constitutes harassment is because of a protected characteristic, there can be circumstances in which harassment occurs where the protected characteristic did not motivate the harasser at all (so there was no mental element in it).  It seems, really, that the original Tribunal was confusing the test for sex discrimination (where treatment has to be on the grounds of protected characteristics) with the test for harassment where it is clear that its intention is irrelevant.

“Victimisation”

“Victimisation” in employment law occurs where there is essentially retribution from the employer because the employee raises something relating to the Equality Act 2010.   On the facts here the Claimant alleged victimisation because the Respondent refused to share notes which the Respondent employer thought might be used by the Claimant to support a discrimination claim.  The original Tribunal found that the Respondent would have acted the same if the Claimant was going to bring other claims, not Equality Act claims, and therefore did not support the claim of victimisation.

The EAT disagreed saying that was not the test that should be applied.  Instead the question should have been whether the decision not to provide the notes was to a material degree influenced by the fact that a complaint of unlawful discrimination might be made.

Comment

Both of these findings by the EAT remind employers of the width of the protection offered by the Equality Act and how harassment can occur regardless of motive.  This can lead to some problematic areas.  Simply noting someone’s accent is different because of national or ethnic origin can simply be a fact, however the EAT effectively concluded this can constitute harassment.

The finding on victimisation also reminds employers of the breadth of that protection for employees and how the Tribunal will enquire into the motivations of the employer when there is alleged to be less favourable treatment because of anything an employee is raising relating to the Equality Act.