11 May 2018

Given the politically and religiously charged environment in which we operate, one issue that arises in practice is how the law of harassment applies within the workplace.

The facts

This issue came into sharp focus in Bakkali v Greater Manchester Buses (South) Ltd t/a Stage Coach Manchester in which the Claimant was Muslim and worked as a bus driver. In early October 2015, the Claimant had a conversation with another driver about a report involving Islamic State (IS) fighters. On 19 October the claimant was approached by the same driver who unexpectedly asked the Claimant: ‘Are you still promoting IS?’ The Claimant was upset and a heated dispute ensued. The Claimant was subsequently dismissed for gross misconduct.

The Claimant argued (amongst other things) that he had been unlawfully harassed (on grounds of race and/or religion/belief) based on the above comments.

The outcome

The Employment Tribunal dismissed the discrimination and harassment claims. The Tribunal noted that, absent the context, the remark made on 19 October could have supported an inference of religious discrimination but the Employment Tribunal was satisfied the remark was made because of the previous conversation and not therefore because of the Claimant’s religion or race. The Employment Tribunal also found that the remark amounted to unwanted conduct that had the effect (but not the purpose) of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant. However, the Employment Tribunal had found that the remark was not ‘related to’ religion or race and so the claim failed.

The appeal

The Claimant appealed against this decision but the Employment Appeal Tribunal refused the appeal. The Employment Appeal Tribunal observed that conduct ‘related to’ a protected characteristic encapsulates a wider category of conduct than conduct ‘because of’ a protected characteristic. A broader enquiry is required, involving a more intense focus on the context of the offending words or behaviour.

In this case since the harassment claim was based on the same facts as those relied upon for direct discrimination, the Employment Tribunal was correct in its findings. The Tribunal had properly considered whether the conduct was ‘related to’ religion or race and, in doing so, it rightly took into account the context in which the offending words were spoken. The Employment Appeal Tribunal noted that the decision taken by the Employment Tribunal may not have been the decision another tribunal may have reached but the decision was correct in law.

Taking care

Unlawful harassment is widely drafted but ultimately the facts in each case do need to be considered and assessed. Care, as ever, is needed in this area, and employers should ensure that they have up to date policies that deal with equality within the workplace. Training for staff is key to ensure an appropriate culture exists and staff understand the rules in this area. As ever with such policies live it don’t laminate it!

The full judgment can be read here.

Your expert BTO employment lawyers are on hand to help.

To discuss further please contact one of our BTO employment lawyers on 0141 221 8012.