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The importance of context in determining unlawful harassment (UK)

Ostensibly the Employment Appeal Tribunal’s decision in Bakkali –v- Greater Manchester Buses last week is a faintly technical one about how the required connection with a personal characteristic protected under the Equality Act differs between direct discrimination and harassment.

Direct discrimination requires the unfavourable treatment to be “on the grounds of” the characteristic, implying some element of deliberation in it. By contrast, harassment requires only that the unwanted conduct is “related to” that characteristic. This reflects the definition of harassment in Section 26 Equality Act, being conduct which has the purpose or effect of causing that unhappiness. In other words, no intention needed. Consequently, it is technically possible for conduct to constitute unlawful harassment even if it is not direct discrimination.

However, the more interesting bit of Bakkali from the practical HR perspective was its focus on the context of the offending remark as a determinant of whether it genuinely related to the protected characteristic.

Mr Bakkali, a Moroccan Muslim, started a conversation with a non-Muslim colleague about an article he had seen concerning Islamic State. The article had contained some comment which could be construed as positive about IS, complimenting their combat skills and their enforcing at least a form of law and order in place of chaos. A few days later in the works canteen, the colleague asked Bakkali “Are you still promoting IS?”. Bakkali was understandably angered by this, there was a bit of argy-bargy which an investigation laid at his door, and he was dismissed for gross misconduct.

Asking anyone, but particularly a Muslim, “Are you still promoting Islamic State?” is rarely going to be a wise move. However, the Tribunal found that the question was asked not because of Bakkali’s race or religion but on the grounds of the conversation a few days earlier in which the colleague had understood his references to the positive sentiments in the article as signifying some level of support for IS. As the remark was not “on the grounds of” Bakkali’s race or religion, it was not direct discrimination. But surely a remark about Islamic State still “related to” the protected characteristic of Bakkali’s religion for harassment purposes? How could it not?

Enter the context question. Quoting an earlier case, the Employment Appeal Tribunal said that it was the Tribunal’s right and obligation “to decide what the context is…it may be a mistake to focus upon a remark in isolation. A Tribunal is entitled to take the view…that a remark, however unpleasant and however unacceptable, is a remark made in a particular context; it is not simply a remark standing on its own”. And then: “words that are hostile may contain a reference to a particular characteristic of the person to whom and against whom they are spoken. Generally a Tribunal might conclude that in consequence the words themselves are…discriminatory, but [it] is not obliged to do so. The words are to be seen in context”.

The context here was that Bakkali had started a conversation about Islamic State and in so doing had relayed comments seemingly supportive of it. As such, the colleague’s question about his “still promoting” IS related to the earlier conversation, not to Bakkali’s race or religion.

The Employment Appeal Tribunal ended its judgement with the tell-tale words “While another Tribunal may have reached a different conclusion”, meaning that given a clean sheet it would probably have done the same. However, it could not fault the Tribunal’s legal thinking and so the EAT’s disagreement with the factual conclusion was not sufficient to overturn its decision. GMB may nonetheless consider itself lucky on this occasion.

This case is potentially a useful one for HR in cases where a conversation or banter is alleged to have crossed a line into harassment. If there is a lead-up to a particular remark then even if the conversation does contain a marginal hostage to fortune like the words of Bakkali’s colleague here, there may potentially still be a last-ditch defence.

As a separate argument not used here, an employer in a similar situation could consider running the defence in Section 26(4) Equality Act. This applies where it is not reasonable for a particular word or action to cause affront. Where an employee is a willing party to a conversation about a “hot” topic such as race or religion, can he/she reasonably feel intimidated, degraded, offended, etc., merely because views are then expressed on that topic which do not accord with his own? After all, a thing said in one context may carry an entirely different significance from the same thing said in another. If the disagreement or criticism of his view is expressed in the context of an otherwise mutual exchange, the Employment Tribunal may not be all that sympathetic to claims of offence arising as a result.

Of course, neither the context argument nor s26(4) will protect the employer where the remark is clearly abusive or made because of the other party’s faith or race – in other words, something which Bakkali’s colleague would not have said if Bakkali had made the same comments aboutthe same article but had not been Moroccan or a Muslim.

© Copyright 2018 Squire Patton Boggs (US) LLP

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About this Author

David Whincup, Employment Attorney, Squires Patton Boggs Law Firm
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Following ten years at a Magic Circle firm, David has been Head of our London Employment practice since 1994. His expertise gained from twenty-five years as a specialist Employment Law practitioner covers a wide variety of employment-related issues, including in particular individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding...

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