During a conversation with a colleague, an employee who identified himself as of Moroccan origin and a Muslim mentioned a newspaper article which referred to IS as "confident and proficient fighters". In a subsequent conversation, the colleague asked the employee "Are you still promoting IS/Daesh". The employee was upset by this conversation and ended up in an altercation with a third member of staff. That incident resulted in his dismissal for gross misconduct. He subsequently claimed that the comment about IS was harassment because of race and/or religious belief.
The EAT upheld the tribunal's rejection of the claim. It was clear that the first two elements of a harassment claim were established. There had clearly been unwanted conduct (the comment about IS) which humiliated the employee, so the real issue was whether the tribunal was correct to find that the comment was not "related to" race or religion. This was a wider concept than asking whether the comment was "because of" race or religion.
Although evidence of the "mental processes" of the alleged harasser will be relevant to that factual question, and the colleague in this case had not given evidence, the tribunal had to decide the issue on the basis of all the material before it. This included evidence about the context within which the conduct complained of took place. Here the tribunal concluded that the colleague made the offending remark because of the earlier conversation. As such it was not related to race or religion and the harassment claim failed.