In a recent case, the Employment Appeal Tribunal (EAT) has decided that it was not discriminatory for a colleague to have asked a Muslim employee whether he supported a terrorist group.
Direct discrimination on the grounds of religion takes place where an employee is treated less favourably because of religion. Harassment will happen where an employee is subjected to unwanted conduct related to religion which has the purpose or effect of either violating that employee’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the employee.
Bakkali v GMB (South) Ltd
This case concerned a comment that was made to a bus driver, Mr Bakkali, a Moroccan Muslim, by one of his colleagues. Mr Cotter asked, “Are you still promoting IS?” referring to the terrorist group otherwise known as “Islamic State”. Mr Bakkali claimed that this question was discriminatory and made a claim for direct discrimination and harassment at the Employment Tribunal. He was unsuccessful but appealed to the EAT. In particular, his appeal focused on the test to be applied in harassment cases.
The EAT agreed that for harassment there needs to be a broader enquiry about the reason for the conduct to determine whether it was “related to” religion rather than “because of” it.
However, this led the EAT to look more closely at the context against which the question was asked. Earlier in the same month, Mr Cotter and Mr Bakkali had a conversation during which Mr Bakkali described a report he had read showing IS fighters in a positive way. The EAT found that the question Mr Cotter had asked, although it was wanted and humiliating, was related to that previous conversation rather than Mr Bakkali’s religion. As a result his appeal was unsuccessful.
Comment
Since the introduction of the Equality Act 2010, the main piece of legislation which protects against discrimination, there have been a number of cases which turn on interpreting the precise wording used in the act itself. Here the EAT looked at the meaning of “related to” in the context of harassment. Other cases have looked at the use of (and difference between) “less favourable treatment” and “unfavourable treatment”. This can create uncertainty for employers as it is often unclear what conduct would be lawful and what would not.
To ensure that employees are treated consistently, employers should have in place an up to date and accessible policy regarding bullying, harassment and discrimination. This could set out examples of the types of conduct that would not be accepted in the workplace, as well as the possible consequences for those that break the rules.
How Nelsons Can Help
Our Employment Law team can provide assistance with putting policies in place. For further information, please contact us on 0800 024 1976 or via our online form.