In our last update of the year we bring you technical tribunal processes about not including additional claims at tribunal, how to interpret the Equality Act in relation to the definition of “related to” and how to properly assess value in an assessment of injury to feelings.
- Tribunals: Employment tribunal entitled to refuse amendment where claimant had made informed decision not to include additional claims in ET1
- Race Discrimination: Comments about employee’s accent could be “related to” race for harassment purposes, even if not motivated by race
- Sexual Discrimination: Tribunal’s assessment of injury to feelings in pregnancy discrimination case was “totally flawed”
Tribunals: Employment tribunal entitled to refuse amendment where claimant had made informed decision not to include additional claims in ET1
In Vassallo v Mizuho International plc and another [2024] EAT 170, the EAT held that an employment tribunal had been entitled to refuse a claimant’s application to amend her claim to add a whistleblowing complaint and an indirect sex discrimination complaint. The claimant had been legally represented and there was evidence she had taken a conscious decision not to include those claims in the original ET1.
The EAT has held that an employment tribunal had been entitled to refuse a claimant’s application to amend her claim to add whistleblowing claims and an indirect sex discrimination claim, because the tribunal had been entitled to conclude that she had been legally advised and had made an informed choice not to put them in her ET1.
The claimant’s ET1, which had been drafted by solicitors and submitted in March 2023, contained complaints of breach of contract and disability discrimination. Her solicitors then came off the record. In August 2023, the claimant, having instructed new solicitors, applied to amend her claim to add complaints of detriment and automatic unfair dismissal arising from protected disclosures (the whistleblowing claims) and indirect sex discrimination. The tribunal refused the application to amend, and later declined to reconsider that refusal. It found that no good reasons had been given as to why the claims were not included in the ET1, or for the delay in applying to amend. It noted that the claimant had been legally represented, and it was clear from email correspondence in the hearing bundle that her former solicitors had prepared an earlier draft ET1 containing the whistleblowing claims, but the final ET1 had not included them. The tribunal concluded an informed decision had been taken not to include those claims. The balance of injustice was also in favour of the respondents.
The claimant appealed, arguing that the tribunal had made findings of fact not supported by evidence and/or based on erroneous assumptions. She also argued that she had been badly advised and did not know she had a potential whistleblowing claim.
The EAT refused the appeal. The tribunal had heard evidence and submissions from both parties and had been entitled to conclude that careful thought had been given to the drafting of the ET1. The tribunal did not have to adopt an inquisitorial role in relation to the claimant’s state of knowledge; it was up to the claimant what evidence to introduce and whether to waive privilege in her former solicitors’ advice. Furthermore, it did not matter whether it was the claimant or her former solicitors who made the decision not to include the additional claims in the ET1, since the claimant bore ultimate responsibility for her solicitors’ actions.
Race Discrimination: Comments about employee’s accent could be “related to” race for harassment purposes, even if not motivated by race
In Carozzi v University of Hertfordshire and another [2024] EAT 169, the EAT held that an employment tribunal was wrong to find that comments about an employee’s accent were not harassment under the Equality Act 2010 because they were not motivated by her race. Such comments could nevertheless be “related to” race.
Ms Carozzi, a Brazilian national of Jewish ethnic origin, was employed by the University of Hertfordshire. She resigned before completing her probationary period (which had twice been extended). She brought a number of employment tribunal claims, including for race-related harassment and victimisation. Her harassment claim centred on comments that had been made about her accent. Her victimisation claim alleged that the University’s HR representative, Ms Withers, had refused to share with her the notes of a meeting, because she might then use them against the University in a race discrimination claim.
The tribunal dismissed her claims. It found that the comments about Ms Carozzi’s accent had not been motivated by her race. Rather, they had been about her intelligibility or comprehensibility when communicating.
As for the victimisation claim, the tribunal found that Ms Withers had decided against providing the meeting notes knowing that they might give Ms Carozzi “ammunition” for an employment tribunal claim. However, Ms Withers would have done the same with any other employee who had indicated an intention to make an employment tribunal claim, such as constructive dismissal, that was not based on the EqA 2010. In any event, it did not consider that the treatment could be detrimental, based on Khan and Derbyshire. Ms Carozzi appealed to the EAT.
The EAT allowed the appeal and remitted the harassment and victimisation claims to a fresh tribunal. The EAT observed that there are a number of components in a complaint of harassment, one of which is that the harassment must be “related to” a protected characteristic such as race. In its view, the tribunal had erred in its approach to that component.
The tribunal had stated that a mental element is required in a claim of harassment as much as in a claim of direct discrimination. However, the EAT held that this was wrong. The tribunal had placed considerable emphasis on the Court of Appeal’s decision in Nailard. The issue in that case had been whether the employer’s failure to investigate a grievance alleging sex discrimination was itself related to sex, and therefore an act of harassment. Nailard had not been about harassment in the more typical circumstances in which a complaint is made about words spoken to, or behaviour towards, an individual, and whether that conduct is related to a protected characteristic.
The EAT held that there is no requirement in a harassment claim for a “mental element” equivalent to that in a claim of direct discrimination. Treatment may be “related to” a protected characteristic where it is “because of” the protected characteristic, but that is not the only way conduct can be related to a protected characteristic. There may be circumstances in which harassment occurs where the protected characteristic did not motivate the harasser. The EAT gave the further example of 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 with that characteristic. The fact that the person using the word did not know that it had such a connotation would not prevent the word being related to the protected characteristic. The use of the word could therefore potentially amount to harassment, applying the factors in section 26(4) of the EqA 2010, notably the perception of the complainant and whether it is reasonable for the conduct to have the effect of violating their dignity.
The EAT went on to observe that an accent may be an important part of a person’s national or ethnic identity. 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 did not mean that any mention of a person’s accent will amount to harassment. The tribunal would have to consider whether the comment about an accent in a particular case was unwanted and related to race, as well as considering the other elements of section 26.
The EAT held that the tribunal had asked itself the wrong question to establish the reason for the refusal to supply the meeting notes. It should not have asked whether a person who might have brought a different type of claim (that did not amount to a protected act under the EqA 2010) would have been treated differently. The correct question for the employment tribunal was whether the decision not to provide the meeting notes was to a material degree influenced by the fact that Ms Carozzi had made or might make a complaint of unlawful discrimination.
It noted that the EqA 2010 definition of victimisation no longer requires a comparison to be made with the treatment of others. Regarding detriment, the House of Lords in Khan had held that an employer may take reasonable steps to protect its position in discrimination proceedings without this being considered unlawful victimisation. This had led the tribunal in the instant case to conclude that there had been no detriment. However, the tribunal in this case had not considered whether the parties thought that there were likely to be employment tribunal proceedings. Specifically, it had not considered whether an employee who brings a grievance, that might resolve the issue without the need for tribunal proceedings, might reasonably consider themselves disadvantaged by not being provided with the notes of a meeting. Accordingly, the EAT allowed the appeal on this point.
This case confirms that the “related to” test in the definition of harassment is wider than the “because of” test (sometimes referred to in case law as the “reason why” test) that applies to direct discrimination. Conduct can be related to a protected characteristic either where it is motivated by the protected characteristic, or where, regardless of the conscious or unconscious motivations of the alleged harasser, there is objectively some relationship between the conduct or language used and a protected characteristic. Sexist jokes and racial epithets are obvious examples, but the unwitting use of, for example, homophobic, transphobic or ableist language may also, depending on the circumstances (particularly the reasonableness test), be capable of meeting the definition of harassment.
Sexual Discrimination: Tribunal’s assessment of injury to feelings in pregnancy discrimination case was “totally flawed”
In Shakil v Samsons Limited [2024] EAT 192, the Claimant had only been working for the Respondent for about six months when she called in sick with ‘morning sickness’. In response and without notice, the Respondent reduced the Claimant’s hours of work criticising her capability and conduct. It then placed her at risk of redundancy, ultimately dismissing her, one month before she was due to start maternity leave.
Unsurprisingly, the Claimant took a claim of pregnancy discrimination to the tribunal who agreed with her. It was clear to the tribunal that the Respondent’s actions were due to the Claimant’s pregnancy-related illness and that the redundancy had been invented to deal with the Claimant’s pregnancy. In making the award, however, the tribunal simply made an injury to feelings award of £5,000 without any reference to ‘Vento bands ’ or where the Claimant’s injury fell within those bands. The Claimant appealed the award.
The EAT found this assessment to be “totally flawed” and allowed the appeal on the basis that the tribunal had failed to apply the Vento guidelines at all. In particular, the tribunal did not:
- identify the detailed evidence given by the Claimant in her witness statement about the injury to feeling she suffered as a result of the discrimination;
- make any findings of fact about the injury to feelings suffered;
- refer to Vento at all;
- refer to any statutory provision or authority relevant to assessing injury to feeling;
- identify the relevant bands for this claim in Presidential Guidance;
- state which band the injury to feelings fell within;
- explain why the award was set as it was within the band.
The EAT remitted the matter of remedy to a fresh tribunal rather than impose an alternative injury to feelings award itself.
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