Employment Case Law Update | Winter 2024/2025

Carozzi v University of Hertfordshire & Anor
Comments about accent could be ‘related to’ race for purpose of harassment claim

Background to the case

The EAT considered whether comments about an employee’s accent had the potential to be related to race for the purposes of a harassment claim brought under the Equality Act 2010.

The claimant was a Brazilian national employed by the University of Hertfordshire as an engagement, marketing and partnership manager. Comments were made about the claimant’s accent by her line manager during a review meeting where she was told she had a “very strong accent,” and it could be difficult for her to be understood. The claimant’s line manager said this was an issue as her role was one of communication, engagement, and partnership. The claimant was told to consider how her accent affected the delivery of her verbal communication, and to work on ways to compensate for this by presenting information logically so she could be easily understood.

The claimant resigned from her role and issued claims for harassment related to race, race discrimination, constructive dismissal, and victimisation.

By way of reminder, S.26(1) of the Equality Act 2010 defines harassment as when:

“A person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.”

The result

The employment tribunal found that the references made were concerned with the claimant’s comprehensibility when communicating orally and were not motivated by or made because of her race and dismissed the complaint of harassment.

The claimant appealed this decision to the EAT.

Conversely on appeal, the EAT found that the employment tribunal had erred in its analysis of the term ‘related to’ in the definition of harassment. The EAT considered that the term ‘related to’ in the context of harassment is intended to have a broad meaning and does not necessarily require a mental element in the same way as direct discrimination. Therefore, there could be circumstances where harassment can occur even where a protected characteristic did not motivate the harasser.

The EAT also held that a person’s accent may be an important part of their national or ethnic identity. Therefore, comments about that person’s accent could be related to their race and criticisms of their accent have the potential to amount to harassment. An employment tribunal would need to consider the specific circumstances of any case to determine whether a comment about a person’s accent was unwanted, related to race, and had the purpose or effect of violating that person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.

Key takeaway

This serves a useful reminder to employers to be mindful that issues concerning accents in the workplace should be dealt with sensitively. This case reminds employers to review their harassment policies and ensure staff are aware of and take steps to minimise risks of harassment including how different types of harassment may occur.

Shakil v Samsons Ltd
EAT finds tribunal made “totally flawed” assessment of injury to feelings in pregnancy discrimination case

Background to the case

The claimant was an employee of Samsons Ltd and, after informing her employer of her pregnancy in March 2021, her hours were reduced without notice due to pregnancy related illness. In September 2021 she was provisionally selected for redundancy and was dismissed on 31 September 2021. The claimant filed a claim for pregnancy discrimination.

The result

The employment tribunal found in her favour, awarding £5,000 for injury to feelings – the lower Vento band typically used in less serious cases of discrimination. The employment tribunal did not provide adequate explanation for placing the claimant’s award in the lower Vento band.

The claimant appealed this award, and the EAT considered whether the employment tribunal had erred in applying the Vento guidelines for injury to feelings.

The claimant’s appeal was upheld finding that the award granted had been “wholly inadequate.” The case was remitted for a new assessment of injury to feelings. The key findings during this reassessment were as follows:

• The employment tribunal failed to identify the appropriate Vento band or explain its appropriate placement within the band.
• The employment tribunal did not account for the prolonged and serious nature of the treatment.
• The employment tribunal incorrectly separated distress caused by the discrimination from the claimant’s pregnancy related concerns despite case law confirming such circumstances heighten injury to feelings.
• The employment tribunal erred in considering the financial circumstances of the respondent in setting the award, and the respondent’s resources are irrelevant to compensatory awards for injury to feelings.
• The employment tribunal failed to account for the respondent’s inappropriate behaviour during the litigation.

Key takeaway

This case serves as a useful warning to employers of the potential financial cost associated with pregnancy discrimination. In particular, the useful point made that limited financial resources will not justify a reduction in award or warrant any sort of leniency for the employer.

The EAT made the point in this case that the loss suffered by a claimant would be the same, however rich or poor a respondent may be, and therefore an award should never be reduced because of limited means of the respondent. It is important to remember that the purpose of the award is to compensate a claimant rather than punish a respondent.

Alexis v Westminster Drug Project
Length of service and alternatives to dismissal not relevant factors where dismissal was due to irretrievable breakdown in relationship

Background to the case

The claimant in this case was dyslexic and was employed by Westminster Drug Project as an administrator. In 2020 there was a restructuring exercise whereby three administrator posts were reduced to two. The claimant, and two others, applied for the new posts and selection was done by way of interview. The claimant raised a grievance about the interview process after she was unsuccessful, claiming she should have received questions in advance due to her dyslexia.

The result

The outcome of the grievance was favourable to her, offering her a new interview. However, the claimant rejected the outcome of her grievance and appealed. She then rejected the outcome of her appeal which was also favourable to her and continued to challenge and question the process.

The respondent held a meeting with the claimant to discuss whether her continued employment was sustainable, and they expressed concerns about her behaviour and a breakdown in trust between the parties. The respondent held that the employment relationship had broken down and dismissed the claimant with notice, by way of some other substantial reason.

The claimant brought a claim of unfair dismissal, which was rejected by the employment tribunal.

The claimant appealed this decision on the grounds that insufficient consideration had been given to her length of service or an alternative to dismissal.

The EAT dismissed the Claimant’s appeal, finding that her dismissal had been fair and, once the employer had reasonably concluded the relationship had irretrievably broken down, the length of service was irrelevant to the decision to dismiss. The EAT also said that no alternative sanction would have been appropriate given the lack of trust and confidence and the significant breakdown in relationships.

Key takeaway

It was crucial for the respondent in this case that they had followed a fair and reasonable process consistently in their decision making and taken all steps necessary to work collaboratively with the Claimant to find a resolution. Providing the claimant with options to consider and setting out their concerns clearly put the respondent in a good position to show that the claimant had not been unfairly dismissed. This flags to employer’s how important it is to stick to policies and procedures in circumstances of dismissal to ensure that fairness is easy to demonstrate in the unfortunate event of a tribunal claim.

Morais & Ors v Ryanair DAC
Protection under blacklists regulations extends to workers taking industrial action

Background to the case

This case concerned application of the Employment Relations Act 1999 (Blacklists) Regulations 2010 (“Blacklisting Regulations”) to industrial action. The claimants were UK based Ryanair pilots and members of British Airline Pilots Association (BALPA). The pilots participated in a lawful strike following a dispute over pay and conditions.

Ryanair retaliated by withdrawing discretionary staff travel benefits from striking pilots for 12 months. The pilots claimed a detriment under S.146 of the Trade Union and Labour Relations (Consolidation) Act 1992 – otherwise known as TULRCA – and breach of the Blacklisting Regulations on the basis that Ryanair had necessarily created and used a prohibited list of striking employees to apply the detriment.

The result

The employment tribunal held that, in taking strike action, the claimants were taking part in trade union activities for the purposes of the Blacklisting Regulations. The claimants were also held to be taking part in the activities of an independent trade union for the purposes of TULRCA. In summary, it was held that the production of an employee record by Ryanair for their own use identifying individuals who were taking strike action amounted to blacklisting and using a ‘prohibited list’.

Ryanair appealed this decision to the EAT. However, the EAT dismissed their appeal and upheld the finding that taking strike action constitutes “activities of trade unions” under the Blacklisting Regulations. The court said that “activities of trade unions” should be given its ordinary meaning which includes participation in official industrial action organised or endorsed by a trade union. Therefore, it is unlawful to blacklist an employee for taking part in the activities of trade unions including industrial action organised or endorsed by a trade union.

The court found no basis for importing into the Blacklisting Regulations a requirement that the industrial action must comply with Part V of the 1992 Act to achieve statutory immunity. The consultation documents and guidance in this case indicated that the intention was to cover participation in official industrial action.

The EAT also found that it would be an abuse of process for Ryanair to relitigate the lawfulness or the strike ballot, as this issue was conclusively determined in previous High Court proceedings.

Key takeaway

Ryanair’s actions were deemed to be unlawful under the Blacklisting Regulations, and the court’s ruling emphasised the need for clarity in the interpretation of statutory protections for workers engaged in trade union activities.