The law states that it is harassment if a person engages in unwanted conduct relating to a protected characteristic which has the purpose or effect of creating an intimidating or offensive environment. In Ali v Heathrow Express and Redline Assured Security Ltd, the Employment Appeal Tribunal (EAT) held that the tribunal was entitled to conclude that it was not reasonable for Mr Ali to take offence at the use of certain words.
Basic facts
Redline had a contract with Heathrow Airport for various security-related services, including security testing at stations operated by Heathrow Express, where Mr Ali worked as a security officer.
In August 2017, Redline carried out a security test using a bag containing a box, some electric cabling and, visible at the top, a piece of paper with the words “Allahu Akbar” written in Arabic. Mr Ali, who is a Muslim, was not on duty that day and the bag was found by a colleague. He was, however, among a group of employees who received an email with the results of the test, which included images of the bag and the note.
Mr Ali lodged tribunal proceedings, arguing that Redline’s conduct amounted to either direct discrimination on the basis of his religion under the Equality Act and that Heathrow Express, as Redline’s agent, was also liable. In addition, he argued that the conduct amounted to harassment under the Act as it had violated his dignity and created a hostile environment for him.
Tribunal decision
The tribunal dismissed Mr Ali’s claim of direct discrimination as there was no sense in which the security test was directed at him. With regard to the claim of harassment, the tribunal accepted that it constituted unwanted conduct, and given the association of the words used with Islam, it related to his religion.
However, although Mr Ali considered the use of the phrase had violated his dignity and created a hostile environment for him, his perception was just one of the matters it had to take into account. It also had to consider “the other circumstances of the case” and “whether it [was] reasonable for the conduct to have that effect”.
The tribunal considered that it was regrettable that the words had been used in connection with terrorist attacks, but that it was legitimate to reinforce the “suspicious” nature of its packages by referring to known threats and matters connected with previous recent terrorist incidents.
In light of these circumstances, the tribunal considered that Mr Ali should have understood that in adding this phrase the employer was not seeking to associate Islam with terrorism. Instead they were seeking to produce a suspicious item based on possible threats to the airport.
EAT decision
Dismissing the appeal, the EAT held that the tribunal was entitled to find the words had been used in connection with recent high profile terrorist attacks in 2017 to draw attention to the suspicious nature of the package. By using the words in this context the employer was not seeking to associate Islam with terrorism, but was simply trying to produce a realistically suspicious-looking item. As such, the tribunal’s decision was not perverse.
Nor was the tribunal wrong to find that Mr Ali ought to have reasonably appreciated that this was the employer’s intention as the purpose behind the conduct was relevant to determining whether it was reasonable for him to take offence.
The EAT also reiterated that a perversity appeal will only succeed if no reasonable tribunal could have reached the conclusion that this tribunal did. Even though the employer’s actions might be viewed as ill-judged or insensitive, this did not mean that the high hurdle had been surmounted in this case.
In terms of a failure to give adequate reasons, the EAT held that just because the tribunal did not mention certain, uncontroversial propositions – for instance, that the vast majority of Muslims did not support terrorism – this did not mean it had failed to consider them.