Telling someone with a foreign accent you can’t understand them could be racial harassment, a senior tribunal judge has suggested, after a university worker sued her employer after criticism of her ‘strong’ Brazilian accent.
His Honour Judge Tayler warned that commenting on or criticising the way someone from another country or ethnic group speaks could breach employment law.
He also said people can still commit racial harassment even if they have no idea what they were saying was offensive.
The Senior Circuit Judge of the Employment Appeal Tribunal [EAT] made the ruling following a case about a university worker who sued when she received criticism over her ‘strong’ Brazilian accent.
Elaine Carozzi took the University of Hertfordshire to an employment tribunal, claiming she suffered race discrimination and harassment over comments about her accent.
Although the marketing manager had a good grasp of the English language, managers at the institution struggled to understand what she was saying.
Ms Carozzi alleged her pronunciations were ‘used as a measuring stick to deduct my credibility and professional capability’ before she resigned in January 2019.
Elaine Carozzi, pictured, took the University of Hertfordshire to an employment tribunal, claiming she suffered race discrimination and harassment over comments about her accent
Her claims were initially dismissed by a tribunal in Watford, however, she has now won the legal battle to have part of her case reheard as the EAT found that there were mistakes in its decision about her accent.
Judge Tayler, sitting on the appeal case, found that the tribunal did not properly consider that an accent is linked to someone’s race.
The tribunal heard how Ms Carozzi made allegations including that her manager Annabel Lucas discriminated against her.
This happened while she was on probation at the University of Hertfordshire, having joined in December 2017.
However, the probation period kept getting extended over concerns about her communication in part due to her pronunciation.
Ms Carozzi said: ‘Over 13 months, Annabel Lucas used my accent, religion, and cultural background as a measuring stick to deduct my credibility and professional capability.’
She claimed: ‘[Mrs Lucas] overreacted and started making derogative remarks about my attitude, culture, and my Brazilian accent.
‘[Mrs Lucas] told me that ‘the team’ was having issues with my ‘very strong accent’, and therefore they didn’t want to invite me to important meetings and events.’
She added: ‘I have a Brazilian accent. I can’t change my background, my ethnicity, and my national origins.’
All of Ms Carozzi’s claims were dismissed by the original tribunal in 2021.
However, the EAT said the tribunal made mistakes in its judgement relating to a probation meeting in April 2018.
At the meeting, Mrs Lucas said: ‘You have a very strong accent, and although your English language is very good it can be difficult for you to be understood, and this is an issue when your role if [is] one of communication, engagement and partnership.’
The original tribunal ruled the former employee’s accent had ‘had nothing whatsoever to do with her race’ and that Mrs Lucas’s comments did not harass her.
But Judge Tayler at the EAT said the tribunal made a mistake because even though Ms Carozzi’s race did not ‘motivate’ Mrs Lucas’ comments, it was still connected and therefore potentially harassment.
The original tribunal made a similar mistake in another of her claims about her accent, Judge Tayler found.
He said it also made a third mistake when making a ruling on a claim about victimisation, the judge said.
The judge found that the original panel ‘erred in law’ when it found that the university did not racially harass Ms Carozzi.
He suggested that comments about not understanding someone with a foreign accent could still be harassment.
This happened while she was on probation at the university having joined in December 2017. Picture: University of Hertfordshire
‘An accent may be an important part of a person’s national or ethnic identity,’ he said.
‘Comments about a person’s accent could be related to the protected characteristic of race.
‘Criticism of such an accent could violate dignity. Obviously, that does not mean that any mention of a person’s accent will amount to harassment.
‘Consideration would have to be given in any case to whether a comment about an accent was unwanted, related to race and… such as whether the conduct had the purpose or effect of violating dignity.’
Speaking generally about causing offence in his ruling, Judge Tayler said that people can be guilty of harassment even if they have no idea what they are saying is offensive.
‘Take, for example, a person who unknowingly uses a word that is offensive to people who have a relevant protected characteristic because it is historically linked to oppression of people who have the protected characteristic,’ he said.
‘The fact that the person, when using the word, did not know that it had such a meaning or connotation, would not prevent the word used being related to the protected characteristic.
‘That does not necessarily mean the person who used the word would be liable for harassment, because it would still be necessary to consider whether the conduct violated the complainant’s dignity.
‘If the use of the word had that effect but not that purpose, the Employment Tribunal would go on to consider [if it amounted to harassment under employment law].
‘That said, there could be circumstances in which, even though a word was used without knowledge of the offensive connotations, having considered… the perception of the recipient, other circumstances and whether it is reasonable for the conduct to have that effect, the use of the word would nonetheless amount to harassment.’
Concluding, he added these three complaints should be heard by a new tribunal.
Reacting to the EAT decision on Linkedin, Ms Carozzi said: ‘They thought someone with a ‘strong accent’ would be an easy target. Surprise!
‘This Brazilian accent came with a backbone of steel. They didn’t realise they were up against someone who wouldn’t back down.
‘Never underestimate someone just because they speak differently. Sometimes the strongest voice is the one they tried to silence.’
A University of Hertfordshire spokesperson said: ‘No court or Tribunal has made any finding of antisemitism or any other form of discrimination against the University, or any of its employees in this case.
‘There have been no findings of discrimination in relation to Ms Carozzi’s accent; neither have there been any findings regarding colleagues tracking her life, whereabouts, anything to do with her accent, or anything else.
‘The University is committed to creating a diverse, inclusive and welcoming environment for our global community spanning 140 nationalities so that everyone, no matter their background, feels welcome and safe.
‘We have comprehensive inclusivity training and policies and regular workplace culture assessments. We also adopt the IHRA definition of antisemitism, as clarified by the Home Affairs Select Committee in 2016.
‘We would consider any antisemitism to be in breach of our policies and position on equality and diversity, and our commitment to an inclusive and understanding culture.’