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Terrorism Exercise Was Not Harassment of Muslim Employee

on Friday, 29 April 2022.

A recent Employment Appeal Tribunal (EAT) decision demonstrates a claimant's perception alone is not enough to turn conduct into harassment.

Suspicious Objects Planted

In the case of Ali v Heathrow Express and Redline Assured Security Limited, Mr Ali is a security guard at Heathrow Airport. He is employed by Heathrow Express. Redline Assured Security (Redline) is responsible for carrying out security checks both at the airport and at Heathrow Express stations. The checks Redline carry out include creating and leaving suspicious objects visible to test how security officers respond to them.

Mr Ali complained after Redline carried out an exercise involving a box, some electric cabling, and a piece of paper with the words "Allahu Akbar" written in Arabic. Mr Ali was not involved in the exercise but was included on an email reporting the results of the test and containing images of the bag and note.

Harassment Claim

Mr Ali complained Redline's exercise amounted to either direct discrimination against him or harassment under the Equality Act 2010. Both claims were rejected by the Tribunal and Mr Ali appealed to the EAT in respect of the Tribunal's findings on the harassment claim only.

Under the Equality Act, harassment occurs when a person engages in unwanted conduct relating to a relevant protected characteristic, which in this case was religion. The conduct must have the 'purpose or effect' of violating the other person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

Mr Ali claimed Redline's conduct had the effect of violating his dignity. In order to reach a decision on whether particular conduct constitutes harassment by effect, the Equality Act requires the Tribunal to take into account each of the following:

  • the claimant's perception
  • the other circumstances of the case
  • whether it is reasonable for the conduct to have the effect complained of

Redline Was Not Seeking to Associate Islam with Terrorism

The EAT agreed with the Tribunal before it, that it was not reasonable for Mr Ali to perceive Redline's conduct as harassment. He should have understood Redline was not seeking to associate the whole of Islam with terrorism, but was referring to the context of recent incidents in which that particular phrase had been used by terrorists. Whilst Mr Ali's perception of the incident was relevant to his claim, it was only one of the factors the Tribunal needed to take into account in order to reach a decision on whether the conduct complained of amounted to harassment.

What Does This Mean for Employers?

This case is a useful reminder of the principles of a claim of harassment by effect. The claimant's perception of an incident will always be of importance, but the wider circumstances and reasonableness of their position will also be taken into account.

For more information on harassment in the workplace, please contact Lorna Scully in our Employment team on 07500 846624, or complete the form below.

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