Opinion

Religious Harassment - is context a factor?

14th June 2018

Harassment on the basis of a protected characteristic in the workplace is a serious issue and one that can have far reaching impacts on an employer. Aside from financial damage due to a lost tribunal case, one of the key repercussions is that of reputational damage to the business. In some cases, certain comments are clearly related to a protected characteristic and amount to harassment. However, in what circumstances and to what extent can the context in which a comment is made, have an impact on an alleged act of harassment?

This was the question addressed in the case of Bakkali v Greater Manchester Buses (South) Ltd (t/a Stage Coach Manchester). In this case, Mr Bakkali alleged racial harassment following a conversation that he held with a work colleague.

Mr Bakkali was of Muslim faith and worked as a bus driver. During a conversation with a work colleague, he told his colleague about a German news report which commented about the proficiency of Islamic State (IS) fighters. Mr Bakkali’s colleague then asked Mr Bakkali if he supported IS. Mr Bakkali was quite upset by the conversation. Mr Bakkali and his colleague then had an argument about their discussion with one witness stating that Mr Bakkali was quite intimidating and aggressive.

Mr Bakkali was suspended pending a disciplinary investigation. During the subsequent disciplinary hearing, it was suggested that the comment was a joke but Mr Bakkali stated that he did not accept the comment as such. He was then dismissed on the basis of gross misconduct emanating from threatening and abusive behaviour. His appeals were both dismissed.

The Employment Tribunal found that whilst the comments could be deemed to infer discrimination given that they could be taken to suggest a link between being Muslim and supporting IS, in this circumstance, the context played a key role. This is where Mr Bakkali’s claim failed as he had made reference to a report that referred to IS fighters in a positive light. The colleague had therefore made the remark and asked the question in light of Mr Bakkali’s comments and not because of his religion. Neither the discrimination or harassment claims could be taken to have been linked to his religion.

The EAT agreed with the ET, stating that he had been entitled to rely on the reasoning for the discrimination claim when deciding upon the harassment claim. The EAT stated that the ET had rightly considered the context and as such, the comments were not related to religion.

Employer Considerations

Harassment in the workplace is mainly concerned with how an employee feels or is made to feel on the basis of treatment to which he or she has been subject that could be said to be degrading or humiliating. In this circumstance, whilst there could be deemed to be a link between religion and the comment made, the ET and EAT found that the context was key, i.e. that the work colleague asked the question on the basis of a comment made surrounding IS.

This case should be viewed with caution however. Another ET could potentially have taken the view that the comment was in fact, linked to religion thereby amounting to discrimination and harassment. On that basis, employers should ensure that staff are adequately trained as to what is and is not, acceptable during workplace conversations.

The strongest method of avoiding workplace harassment claims is to ensure that staff are aware of the standards expected of them in the workplace via appropriate policy wording and training.

 

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