The EAT has ruled that when deciding whether claims of unwanted conduct are "related to" a protected characteristic the Tribunal must consider the surrounding facts and circumstances of the case.
Under s.13 of the Equality Act 2010 (EqA) direct discrimination occurs where: (i) a person treats another person less favorably than they treat or would treat others; and (ii) they do so because of a protected characteristic. The treatment must be "because of" a protected characteristic.
Harassment, although similar in consequence for the victim, has a much wider and more lenient scope. Under s.26 of the EqA, harassment occurs where a person is subjected to unsolicited conduct and the conduct in question "relates to" certain protected characteristics, including race and religion or belief. If the conduct: (i) causes, or is intended to cause, violation of the individual's dignity; or (ii) creates, or is intended to create, an environment that feels intimidating, hostile, degrading, humiliating or offensive to the individual, then this amounts to harassment.
Under s.26(4) of the EqA, in considering whether conduct has had such an effect, the Tribunal must take a subjective approach and give weight to: (i) the perception of the victim; (ii) the other circumstances of the case; and (iii) whether it is reasonable for the conduct to have that effect.
The Claimant, Mr Bakkali, was a Muslim bus driver of Moroccan origin. In early October 2015, having read a German newspaper report on the so-called Islamic State (IS), he quoted the journalist's comments to his non-Muslim colleague, Mr Cotter. The Claimant said that IS were: "…trying to enforce law and order upon its subjects" and were: "… confident and proficient fighters".
Later that month, during a conversation in the workplace canteen, Mr Cotter asked the Claimant: "Are you still promoting IS/Daesh?" The Claimant was offended by this comment. He reacted very aggressively towards Mr Cotter and other colleagues within the vicinity. Thereafter, following an investigation by the employer into the incident, the Claimant was dismissed for gross misconduct.
Following his dismissal, the Claimant raised various claims in the Employment Tribunal (ET) alleging Mr Cotter's comment amounted to separate claims of direct discrimination and harassment on the grounds of religion and race. The ET dismissed both claims. Applying the test under s.13 of the EqA, the ET concluded that Mr Cotter's remark was not "because of" the Claimant’s race or religion at all, but was based on the conversation they had few weeks earlier in which Mr Cotter had reasonably understood the Claimant's inferences to be positive sentiments in support of IS. Therefore, the ET ruled that, whilst the comment did amount to unwanted conduct and had the effect of violating the Claimant's dignity and creating an intimidating, hostile, degrading or humiliating environment, it did not relate to his religious belief or race and, therefore, did not amount to discriminatory harassment.
The Claimant appealed to the EAT contending that the ET had erred in law by dismissing the harassment claim whilst relying on the reasoning given in respect of the direct discrimination claim. The Claimant said that the ET should have considered the wider context relevant to s.26 of the EqA and Mr Cotter should have given evidence to explain why he made the comment.
The EAT dismissed the Claimant's appeal holding that the ET had applied the law correctly and there was no error in the decision-making process.
In its reasoning, the EAT acknowledged that the test to satisfy a claim of harassment was less stringent than the test for direct discrimination. A direct discrimination claim requires the conduct to be "because of" the protected characteristic (and necessitates a comparator) whereas a harassment claim only requires the conduct to "relate to" a protected characteristic. In applying the test for the former, the ET made findings of fact and decided it was clear that the comment by Mr Cotter was instigated by the previous conversation with the Claimant and was not connected to the Claimant's race or religion. Importantly, the Claimant was relying upon the same facts to support his claim of harassment, therefore the ET did not err in referring back to their findings (in respect of the discrimination claim) to support its decision on the harassment claim.
In making its decision, the EAT acknowledged that because the test for harassment is less stringent than that for discrimination, it requires a “more intense focus on the context” of the offending conduct and whilst evidence from the alleged harasser is helpful in assessing his mental state it is not fundamental in determining the context. Furthermore, whilst the ET is entitled to conclude that particular words in isolation are discriminatory, it is under no obligation to do so and is "entitled to take into account the context in which the offending words were spoken." In light of this, the EAT held that although another ET may have reached a different conclusion, the correct test for s.26 was applied and the appeal was dismissed.
It is clear from this judgment that context can be significant in distinguishing between harassment and bland unwanted conduct.
In this case, had the surrounding circumstances not been considered it seems the conclusion would have been very different. This is a reminder to employers that when dealing with an allegation of harassment in the workplace, although not always relevant, the surrounding circumstances and background events should be taken into account as they could be crucial to deciding whether a serious act of misconduct has occurred.
This briefing was drafted by Kathleen Gallacher, Trainee Solicitor.