Harassment: context is key

A Muslim employee had not suffered religious harassment when a colleague asked him if he was still promoting Islamic State as, viewed in context, the comment was not related to religion or belief.  

Facts

In Bakkali v Greater Manchester Buses, Mr Bakkali told a colleague, Mr Cotter, about a report by a journalist which portrayed Islamic State fighters in a favourable light.  A few weeks later Mr Cotter asked him if he was still promoting Islamic State.  Mr Bakkali was upset by the suggestion that he supported Islamic State and became aggressive towards Mr Cotter and another colleague.  Following a disciplinary investigation he was dismissed for gross misconduct.  He claimed, amongst other things, that Mr Cotter’s comment amounted to both direct religious discrimination and harassment.   

The employment tribunal dismissed his claims.  Although viewed in isolation the comment may have been discriminatory, when viewed in context it was clear that Mr Cotter had made the comment because of the previous conversation and not because of Mr Bakkali’s religion.  The direct discrimination claim therefore failed.  Turning to the harassment claim, the tribunal considered that the comment was unwanted conduct which had  the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for Mr Bakkali.  However, in the context the comment was not related to religious belief and so the harassment claim also failed.

Mr Bakkali appealed the harassment decision to the Employment Appeal Tribunal (EAT), arguing that the employment tribunal hadn’t properly considered whether the comment was “related to” religion. 

Decision

The EAT rejected his appeal.  It noted that conduct “related to” a protected characteristic (in the test for harassment) is wider in scope than conduct “because of” a protected characteristic (the test for direct discrimination).  It requires a broader enquiry, involving a more intense focus on the context of the offending words or behaviour, including the mental processes of the alleged harasser.  The tribunal had correctly considered the context and had been entitled to find that the remark was not related to religion, even though another tribunal might have reached a different conclusion.   

Implications

When it comes to determining whether conduct is related to a protected characteristic for the purposes of a harassment claim, context is key.  Viewed in isolation, the remark in this case appeared to be related to religion but when viewed in context the employment tribunal found that it was not.  Nevertheless, conversations about sensitive subjects such as this at work are best avoided and employers could make this clear in their anti-harassment policies.  

When determining whether unwanted conduct has the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment, employment tribunals must take into account the victim’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. The tribunal might therefore also have considered whether in the context, where it was Mr Bakkali who first introduced the subject, it was reasonable for him to have been offended by Mr Cotter’s subsequent comment.