The Equality Act provides for two different tests with regard to proving discrimination and harassment. In Bakkali v Greater Manchester Buses (South) Ltd t/a Stage Coach Manchester, the Employment Appeal Tribunal (EAT) held that the test for harassment included a wider category of conduct than that for discrimination, thus requiring a more intense focus on the context of the offending words or behaviour.
Basic facts
Mr Bakkali, a Muslim of Moroccan origin, had a conversation at work with a colleague, Mr Cotter, about a report by a German journalist in which IS fighters in Syria were described as “confident and proficient fighters”. When Mr Cotter saw Mr Bakkali in the canteen some time after this, he asked him if he was “still promoting IS/Daesh”. Mr Bakkali was upset by the comment and reacted angrily in front of another driver and a canteen worker who found his behaviour aggressive and intimidating.
Following a disciplinary hearing at which he was found to have used threatening and abusive behaviour, Mr Bakkali was summarily dismissed for gross misconduct. He brought claims including direct race and religious discrimination and harassment related to race and religious belief under the Equality Act.
Relevant law
Section 13 of the Equality Act states that it is discrimination for someone to treat another person less favourably “because of” a protected characteristic.
Section 26 states that it is harassment if someone engages in “unwanted conduct” which has the “purpose or effect” of creating a humiliating environment “related to” a protected characteristic.
Tribunal decision
The tribunal dismissed the claims, holding that the comments were not made in isolation but followed on from a previous conversation. As Mr Cotter had understood that Mr Bakkali was making comments in favour of IS during that conversation, it concluded that the remark was not made because he was of Moroccan national origin.
In relation to the allegation of harassment, the tribunal agreed that it constituted unwanted conduct but that it did not have the “purpose” of humiliating him, although that was its effect. However, given the tribunal’s conclusion in relation to the complaint of direct discrimination that the remark was not related to religious belief, the complaint of harassment also failed for the same reason. In other words there was no evidence it was related to race.
Mr Bakkali appealed against the decision on harassment on the ground that the tribunal failed to apply the wider test under section 26 “related to” a protected characteristic. Instead it applied the stricter test under section 13 which requires a comparator and is “because of” a protected characteristic.
EAT decision
The EAT agreed that the test of “related to” within section 26 included a wider category of conduct than “because of” in section 13, thereby requiring a more intense focus on the context of the offending words or behaviour including the mental processes of the alleged harasser (although this was not essential).
However, in this case the EAT concluded that the tribunal applied the correct test. As the complaint of harassment was based on the same facts as those relied on for the complaint of direct discrimination, the tribunal was entitled to take into account the context in which the offending words were spoken before addressing the test applicable to harassment. That is, whether the conduct complained of was or was not related to religious belief.
Whilst another tribunal might have reached a different conclusion, the EAT concluded that there was no question that the tribunal applied the correct test for whether the conduct complained of constituted harassment within the meaning of section 26.