In the recent case of Bakkali v Greater Manchester Buses (South) Ltd the Employment Appeal Tribunal (EAT) confirmed that proper consideration of the context of offensive remarks will be relevant to deciding whether those remarks constitute harassment.
The Claimant was a Muslim man of Moroccan origin. He spoke to a colleague about an article by a journalist who had interviewed Islamic State (IS) fighters. The Claimant quoted some of the journalist's seemingly positive opinions, including that IS were confident and proficient fighters and managed to run the country.
The Claimant's colleague subsequently approached the Claimant on a separate occasion and asked whether he was 'still promoting IS?'. The Claimant was upset by the comment and an altercation ensued. Following a disciplinary procedure the Claimant was dismissed for gross misconduct, having been found to have acted in an aggressive and threatening manner towards his colleague.
The Claimant brought a claim of harassment related to race and/or religion or belief and direct discrimination based on his colleague's comment.
The Employment Tribunal (ET) found that the comment, if viewed in isolation, could be an act of religious discrimination. Given that the Claimant is Muslim, it could have appeared that his colleague linked his religion to the possibility of him supporting IS. However, in the context of the positive opinions quoted by the Claimant in the first conversation, the ET concluded that the comment was made as a result of that conversation, and not because of the Claimant's race or religion. The direct discrimination claim therefore failed.
In respect of the harassment claim, the ET found that the comment was unwanted conduct, but again when viewed in the context of the first conversation, there was no evidence that it was 'related to' race or religion. The harassment claim also failed on this basis.
EAT Decision
The Claimant appealed unsuccessfully to the EAT. The EAT agreed that the context of the comment was important and that the ET had therefore been entitled to find that the comment was not related to religion, although they noted that another Tribunal might have reached a different decision. The EAT also found that as both claims were based on the same facts the ET were entitled to refer to its findings on the discrimination claim when deciding the harassment claim.
Best Practice
This case serves as a useful reminder that the context in which a comment is made will be key when considering whether the conduct amounts to harassment. Where a comment or an act can be explained with reference to relevant context, advice should be sought on the structure of a potential defence to proceedings.
How Important is Context When Deciding Whether a Comment Amounts to Harassment?
on Friday, 18 May 2018.
Jessica Scott-Dye
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In the recent case of Bakkali v Greater Manchester Buses (South) Ltd the Employment Appeal Tribunal (EAT) confirmed that proper consideration of the context of offensive remarks will be relevant to deciding whether those remarks constitute harassment.
The Claimant was a Muslim man of Moroccan origin. He spoke to a colleague about an article by a journalist who had interviewed Islamic State (IS) fighters. The Claimant quoted some of the journalist's seemingly positive opinions, including that IS were confident and proficient fighters and managed to run the country.
The Claimant's colleague subsequently approached the Claimant on a separate occasion and asked whether he was 'still promoting IS?'. The Claimant was upset by the comment and an altercation ensued. Following a disciplinary procedure the Claimant was dismissed for gross misconduct, having been found to have acted in an aggressive and threatening manner towards his colleague.
The Claimant brought a claim of harassment related to race and/or religion or belief and direct discrimination based on his colleague's comment.
The Employment Tribunal (ET) found that the comment, if viewed in isolation, could be an act of religious discrimination. Given that the Claimant is Muslim, it could have appeared that his colleague linked his religion to the possibility of him supporting IS. However, in the context of the positive opinions quoted by the Claimant in the first conversation, the ET concluded that the comment was made as a result of that conversation, and not because of the Claimant's race or religion. The direct discrimination claim therefore failed.
In respect of the harassment claim, the ET found that the comment was unwanted conduct, but again when viewed in the context of the first conversation, there was no evidence that it was 'related to' race or religion. The harassment claim also failed on this basis.
EAT Decision
The Claimant appealed unsuccessfully to the EAT. The EAT agreed that the context of the comment was important and that the ET had therefore been entitled to find that the comment was not related to religion, although they noted that another Tribunal might have reached a different decision. The EAT also found that as both claims were based on the same facts the ET were entitled to refer to its findings on the discrimination claim when deciding the harassment claim.
Best Practice
This case serves as a useful reminder that the context in which a comment is made will be key when considering whether the conduct amounts to harassment. Where a comment or an act can be explained with reference to relevant context, advice should be sought on the structure of a potential defence to proceedings.
For more information, please contact Jessica Scott-Dye in our Employment Law team on 0117 314 5652.