Religious harassment: Asking Muslim colleague if he supported a terrorist group was not discrimination
In the current political climate, employees may be especially sensitive to remarks which touch on race or religion, however obliquely.
When an employee claims that they have been harassed, they must satisfy an employment tribunal that the conduct complained of was ‘related to’ a protected characteristic (such as race or religion).
In Bakkali v Greater Manchester Buses (South) Ltd t/a Stage Coach Manchester the Employment Appeal Tribunal (EAT) held that a Muslim employee who was asked whether he ‘still supported Islamic State’ was not subject to religious harassment as, when taken in context, the remark was not ‘related to’ his religion.
Mr Bakkali, a Muslim man of Moroccan origin, was employed by GMB Ltd as a bus driver. In early October 2015, Mr Bakkali had a discussion with a colleague, Mr Cotter, about a report by a German journalist who had travelled to Syria and spoken to Islamic State (IS) fighters. Mr Bakkali quoted to his colleague some of the comments in the article, including that IS were “trying to enforce law and order” and were “confident and proficient fighters”.
A short while later, on 19 October, the two colleagues were seated together in the canteen when Mr Cotter unexpectedly said to Mr Bakkali “Are you still promoting IS?” Mr Bakkali was upset by this remark and responded aggressively. As a result of this incident he was dismissed for gross misconduct, and brought various claims including unfair dismissal, direct race and religious discrimination and harassment.
The harassment claim was the only live issue at the EAT hearing. Mr Bakkali alleged that the employment tribunal that first heard the case had mixed up the tests for direct discrimination (where unwanted conduct must be ‘because of’ a protected characteristic) and the broader test for harassment (where conduct need only be ‘related to’ the protected characteristic).
The EAT upheld the employment tribunal’s decision that Mr Bakkali had not suffered harassment. It was clear that the employment tribunal had applied the correct test for harassment and had asked itself whether Mr Cotter’s remark was ‘related to’ Mr Bakkali’s race or religion.
The EAT agreed with the employment tribunal’s finding that Mr Cotter had made the remark because of his previous conversation with Mr Bakkali, and not because of his colleague’s race or religion. Had the comment been made in isolation, in the absence of any previous discussion, it may have appeared that Mr Cotter was linking Mr Bakkalli’s race and religion to the possibility of him supporting terrorism. However, the question was clearly prompted by their previous exchange. While the remark had undoubtedly upset Mr Bakkali and violated his dignity, it was not harassment.
What does this mean for me?
This case demonstrates that when you are considering an allegation of harassment, it is crucial to look at all the facts and circumstances of the case, and carefully consider the context in which a remark was made.
The EAT observed that a different employment tribunal might have made a different decision, and found the words used in this case to be discriminatory. Such decisions can often be very finely balanced.
It was also important to the employment tribunal that Mr Cotter had sought to back track from his comment and had apologised to Mr Bakkali for upsetting him. While it may not always be possible to ‘un-do’ an act of harassment once it has taken place, it is good practice to encourage reconciliation between employees where you are satisfied that a comment has caused unintended offence.
In the current political climate, employees may be especially sensitive to remarks which touch on race or religion, however obliquely. Depending on the balance of different races and religions in your workforce and the type of work you do, you may wish to take a firm stance and advise employees not to discuss potentially inflammatory religious or political issues in the work place. However, please do speak to us before you make any changes as it is important to ensure that policies and procedures do not indirectly discriminate against any particular group.
We know that investigating an allegation of harassment can be particularly challenging for HR practitioners seeking to strike a fair balance between employees in conflict and to make an objective assessment of what has taken place. Please do not hesitate to contact us if you require any support.
Louise Singh (email@example.com) is a Professional Support Lawyer supporting the Employment, Pensions and Immigration Team and is based in Liverpool.