TUPE and Indirect Discrimination in Anne & Others v Great Ormond Street Hospital
EAT confirms leaving transferred staff on inferior terms can amount to indirect discrimination, even under TUPE.
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Case Study
The Employment Appeal Tribunal (“EAT”) has given guidance on the meaning of what is “related to race” in the context of an allegation of harassment. This has important consequences for all employers.
Ms Carozzi, a Brazilian national of Jewish ethnic origin, was employed as Marketing, Engagement and Partnerships Manager at the University of Hertfordshire. She felt forced to resign during her probationary period, then brought a number of claims including harassment on grounds of race.
The harassment claim arose out of comments made about her accent which was said to be ‘very strong’. Her colleagues had told her that this made it ‘difficult for her to be understood’. The Employment Tribunal (“ET”) initially found that these comments did not amount to harassment since they had not been motivated by race but had instead been about Ms Carozzi’s intelligibility or comprehensibility when communicating orally.
Case Study
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).
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.
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