Whilst employees will often discuss the affairs of the day with their colleagues, those issues can sometimes stray into matters which might cause offence to particular employees due to their race or religion. In what circumstances might such discussions amount to the offence of ‘harassment’ under the Equality Act 2010? This was recently considered by the Employment Appeal Tribunal in Bakkali v Greater Manchester Buses (South) Ltd UKEAT/0176/17/RN.

Mr Bakkali was a bus driver who identified himself as a Moroccan Muslim. In early October 2015, he had a conversation with his colleague, Mr Cotter, in which he told him about a report by a German journalist who had gone to Syria and spoke to Islamic State (“IS”) fighters. The journalist was of the view that Mosul was a ‘totalitarian state’, that IS were trying to enforce law and order upon its subjects, and that they were confident and proficient fighters. A couple of weeks later, both Mr Bakkali and Mr Cotter were in the workplace canteen. Mr Cotter turned to Mr Bakkali and said ‘Are you still promoting IS Daesh?’ Mr Bakkali got upset at this comment, and he and Mr Cotter went out into the corridor. There was an incident between Mr Bakkali and another colleague, which was witnessed by a canteen worker who described Mr Bakkali as being frightening, aggressive, and intimidating. Mr Bakkali was subsequently dismissed for his behaviour.

He brought a claim to the employment tribunal, alleging, amongst other things, that Mr Cotter’s comment to him amounted to direct discrimination and/or harassment, on the grounds of his race/religion. In order to succeed in his direct discrimination claim, he had to show that the remark was made ‘because of’ his race or religion. The tribunal decided that there was no evidence to support this claim. Had the comment been made in isolation, without the context of the previous discussion, the tribunal considered that they might have taken a different view. If the comment had been made without the context, and the speaker had known Mr Bakkali was Muslim, it would have appeared that the speaker was linking Mr Bakkali’s religion to the possibility of him promoting IS. However, in this case, the earlier conversation had led Mr Cotter to think that Mr Bakkali supported IS. The tribunal then turned to the claim for harassment, where they had to consider whether the comment was ‘related to’ Mr Bakkali’s race or religion. For much the same reasons, they concluded that it was not. Both claims therefore failed.

Mr Bakkali appealed the tribunal’s decision that the comment did not amount to harassment, although he did not appeal the judgment that the comment had not been directly discriminatory. He argued that the tribunal had not sufficiently differentiated between the two legal tests, and argued that the finding based on the wider test of harassment was wrong. The EAT did not agree. They acknowledged that conduct which was ‘related to’ a particular characteristic was wider, and required a broader enquiry. However, the context in which the conduct took place was still a critical component, and in this case it was that context – and in particular the previous conversation – which resulted in the offending comment.

Whilst this particular case did not succeed, it does highlight the wide ambit of the harassment provisions; it is a reminder to employers and employees to be mindful of the sensibilities of their colleagues when interacting with them. The EAT specifically said in this case that another employment tribunal may well have come to a different view of this case, and this also shows that situations such as this are very rarely clear cut. Awareness is key, and employers would do well to provide regular training in this area to all employees.

Safia Tharoo, Barrister, 42 Bedford Row, London