The EAT has upheld a tribunal’s judgment that, taking the context into account, a Muslim employee had not suffered religious harassment when a colleague asked him if he still supported Islamic State.
Mr Bakkali identifies himself as being of Moroccan origin and a Muslim. In early October 2015, he had a conversation with a colleague, Mr Cotter. He told Mr Cotter about a report made by a German journalist who went to Syria and spoke to Islamic State fighters. Mr Bakkali quoted some of the comments made by the journalist, including the opinion of the journalist that: “…Mosul…was a “Totalitarian State”, and that they (Islamic State), are trying to enforce law and order upon its subjects and that they are confident and proficient fighters,”….
A couple of weeks later, Mr Cotter said to Mr Bakkali “Are you still promoting IS/Daesh”. Mr Bakkali was upset by the allegation that he was promoting or supporting Islamic State. He went into the staff canteen, and there was an incident between Mr Bakkali and another in front of a canteen worker, who complained about the incident, which was then investigated. During the investigation, the canteen worker said that that she had found Mr Bakkali frightening, aggressive and very intimidating. After a disciplinary procedure, his employer decided that his behaviour had been threatening and abusive, and Mr Bakkali was dismissed for gross misconduct. His internal appeals were unsuccessful.
Mr Bakkali brought an unsuccessful tribunal claim alleging that he had been directly discriminated against on the grounds of his race/religious belief. The tribunal held that, though Mr Cotter did make the comment which might, taken in isolation, have been an act of direct discrimination, the context should be taken into account – i.e. that this followed on from a conversation during which Mr Bakkali quoted a journalist’s positive views about Islamic State. The comment had been made because of this earlier conversation, not because of Mr Bakkali’s religion.
Mr Bakkali also claimed that the remark by Mr Cotter – “Are you still promoting IS/Daesh” was harassment related to his race and/or religious belief. The tribunal held that, taking the findings about context into account, the comment was not related to Mr Bakkali’s religious belief.
Mr Bakkali appealed the finding in relation to harassment, arguing that the tribunal had failed to apply the correct test for harassment. The EAT held that the tribunal had used the correct test for harassment. The EAT also noted that the test for harassment was whether the conduct was “related” to the protected characteristic, and that this is wider than the test for direct discrimination, which is whether the conduct is “because of” a protected characteristic. This requires a broader enquiry, involving a “more intense focus” on the context of the offending words or behaviour.
In the EAT’s view, the tribunal had rightly considered the context. It was entitled to find that Mr Cotter’s remark was not related to religion, even though another tribunal might have reached a different conclusion.
What does this mean for employers?
This case shows the importance of context in discrimination and harassment allegations. When investigating and making decisions about harassment allegations, employers should fully consider the context to the alleged acts of harassment, and not just the acts in isolation.