Context is important when determining whether a comment amounts to harassment

The EAT recently held in Bakkali v GMB (South) Limited that a colleague’s comment, which was directed toward a Moroccan bus driver of Islamic faith, questioning whether the driver was ‘still promoting ISIS’ did not constitute discrimination or harassment on the grounds of race or religion.

The Claimant, who was employed as a bus driver by the Respondent, identifies as being of Moroccan origin and a Muslim. One day in the workplace canteen a colleague approached the Claimant and asked him “are you still promoting IS/Daesh”. The Claimant reacted badly to this comment and later became aggressive toward another employee. A canteen worker witnessed the incident between the co-workers and said that she found the Claimant’s behaviour frightening, aggressive and intimidating.

The Claimant was suspended and then summarily dismissed for gross misconduct following an investigation. The Claimant brought claims for direct race and religious discrimination, harassment related to religious belief or race, unlawful deductions from wages, and unfair dismissal. These claims were dismissed by the Employment Tribunal and the claim for harassment was appealed to the EAT. The Claimant asserted that his colleague’s comment amounted to harassment on the grounds of his religious belief or race.

The EAT upheld the Employment Tribunal’s decision and the appeal was dismissed.

The importance of context

The context is of particular significance in this claim. The question posed to the Claimant was found not to be because of his race or religion, but because of a conversation the co-workers had a few days earlier in which the colleague understood the Claimant to hold ISIS in a positive light. In this conversation the Claimant had relayed an article relating to ISIS which stated that “ISIS were very good fighters and they had managed to run the country in time”. The unwanted conduct was therefore not related to the Claimant’s protected characteristics i.e. race or religion.

The Employment Tribunal held that, had the comment been made in isolation, it may have concluded that comment was an act of religious discrimination, as the Claimant is of Islamic faith, however given the context, it was clear that the colleagues remark followed on from the conversation he had previously with the Claimant and was therefore not related to his protected characteristics.

The EAT held that the Employment Tribunal was entitled to take into account the context. However, the EAT did note that a different Employment Tribunal may have come to a different conclusion. This case is useful from a HR perspective as it provides guidance for those situations where an employee raises a complaint over a colleagues ‘banter’ which has arisen in consequence of a previous event.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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