The extent to which workplace events can amount to harassment was explored in the recent case of Ali v Heathrow Express Operating Company Ltd and others.
Mr Ali, a Muslim, was employed as a Duty Station Manager, and then as a trainee train driver. Heathrow Airport employs external companies to provide various security-related services, including security testing. One method of testing involves placing suspect packages in or around the airport, to test if they are treated appropriately by staff.
In August 2017, a carrier bag was concealed at one of the stations on the Heathrow Airport estate. The bag was open at the top, such that a cardboard box and some electric wires were visible. At the top of the bag was a piece of paper with the words ‘Allahu Akbar’ written in Arabic. Mr Ali stated he understood this to mean ‘Allah is Greater’ and that this was an important phrase for Muslims, which was used many times a day in the context of religious devotion.
Mr Ali was not on duty on the day that the bag was placed, and found, by a colleague. The company organising the security test would not have known whether he was on duty or not. It was not an exercise directed at Mr Ali. He only found out about it when he saw an email about the outcome of the test, which included photographs of the bag and a note.
Mr Ali brought a claim of harassment to the employment tribunal relating to this incident. Harassment is defined as unwanted conduct and related to a relevant protected characteristic (in this case, Mr Ali’s religion) that has either the purpose or effect of violating that person’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for them. In deciding whether the conduct has had such an effect, the tribunal can look at the perceptions of that person, the circumstances of the case, and whether it is reasonable for the conduct to have that effect.
The tribunal accepted that the bag incident was clearly unwanted conduct and that it was clearly related to Mr Ali’s religion. Mr Ali argued that it violated his dignity and created a hostile environment for him. However, the tribunal noted that they also had to consider the other circumstances of the case.
The security company stated that the only purpose of the note was to ensure that the bag looked obviously suspicious, and the particular words used reflected just one of the threats present in the UK at the time. The company would often use other words designed to create suspicion, such as words relating to animal testing and objections to a third runway at Heathrow Airport. The tribunal accepted that, although the phrase had great significance for Muslims; it was also, regrettably, used in connection with terrorist attacks.
In deciding whether it was reasonable for the conduct to have the effect claimed, they considered that, in the circumstances that existed at the time, it was not reasonable for Mr Ali to take offence at this incident. They considered that he should have appreciated that the security test was not seeking to associate Islam with terrorism, but was trying to produce a suspicious item based on possible threats to the airport on that basis they did not find that the incident amounted to harassment of Mr Ali.
Mr Ali appealed against this particular finding.
He argued that the decision of the tribunal was perverse in that it had not taken into account that the vast majority of Muslims did not behave in the way the extremists carrying out terrorist attacks did, nor did the vast majority support them. It was, therefore, wrong to tarnish the majority of Muslims by using their sacred words in association with possible terrorist attacks. In addition, the perpetuation of such stereotypes was divisive and demonised Muslims in society. The Employment Appeal Tribunal acknowledged these points.
However, showing that a tribunal decision is legally perverse is a high hurdle, and the appeal tribunal found that, notwithstanding the strength of feeling that this case highlighted, the tribunal was entitled to make the findings that they did. That is not to say that a different tribunal might not have come to a different view – but that is not enough to challenge a decision on appeal.
It is notable that after this complaint, the security company stopped using the phrase “Allahu Akbar” in their tests. However, given that it was used in 2017, in the immediate aftermath of the London Bridge, Westminster Bridge and Manchester Arena attacks, the tribunal was willing to accept that this was a reasonable way to show that a package was clearly and obviously suspicious.
Safia Tharoo
Barrister, 40 Bedford Row, London
