How comments on a colleague’s accent may constitute racial harassment

EAT overturned the decision

On appeal, the EAT overturned this finding. It found that the ET had been wrong and that whilst treatment may be ‘related to’ a protected characteristic where it is ‘because of’ it, harassment may also occur where the alleged harasser was not motivated by the characteristic. The EAT gave examples of the making of sexist jokes or the unwitting use of racially insensitive terms. In these examples, the harassment would still be ‘related to’ the protected characteristic.

Remember that when we look at allegations of harassment, we look at what the effect on the recipient was, and not on the intent of the perpetrator. This does not mean that any mention of or reference to someone’s accent will amount to harassment, but that in this case, it was capable of doing so.

Commenting on the link between accent and race, the EAT noted that an accent may be an important part of a person’s national or ethnic identity. Criticism of a person’s accent could therefore be related to the protected characteristic of race and could violate a person’s dignity.

This would mean that harassment could have occurred within the legal definition of “unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them” (Section 26 of the Equality Act 2010).

Why is this important?

This case confirms the position that the test of being ‘related to’ a protected characteristic can be satisfied by establishing an objective link between the conduct and the characteristic, without the need for the conduct to actually be motivated by the characteristic. This suggests that many more claims will be able to proceed with a wider range of behaviour caught by the law.

There is another notable case (British Bung Manufacturing v Finn) where the EAT confirmed calling someone “bald” was held to be “related” to the protected characteristic of gender with men disproportionately affected by the condition. In that case, his colleagues calling him a “bald c*nt” was found to be harassment on the grounds of sex. The fact that baldness is more prevalent amongst men was enough for it to be held to “relate to a protected characteristic”. Some people might be surprised by these findings and what behaviour can amount to harassment related to a protected characteristic.