In Bakkali v Greater Manchester Buses (South) Limited t/a Stage Coach Manchester, the Employment Appeal Tribunal (EAT) was asked to determine whether an employment tribunal had mistakenly applied the test for harassment to claims of unwanted conduct arising from race and religious belief.

The Claimant in this case was a bus driver who was a Muslim man of Moroccan origin.  In early October 2015, upon reviewing a German newspaper report on so-called Islamic State (IS), the Claimant had commented (quoting the report) to a colleague that IS “are confident and proficient fighters” and had “actually managed to run the country in time”.

In mid-to-late October 2015, the colleague asked the Claimant if he was still supporting IS.  The Claimant took offence to this and behaved aggressively towards the colleague who had made the comment and to another bus driver.  The colleague subsequently apologised to the Claimant for his comment.  However, the Claimant was dismissed for gross misconduct as a result of his own conduct towards his colleagues.

The Claimant subsequently brought a claim against the employer, alleging (amongst other things) direct discrimination on the grounds of race and/or religious belief and harassment for conduct related to race and/or religious belief.

Although the tribunal acknowledged that if the colleague’s comment had been made in isolation it may have amounted to discrimination, in the context of the facts in the case, the comment had been made as an extension of the earlier conversation which the Claimant had instigated and not because of his race and/or religious belief.  The tribunal therefore held that the Claimant had not been discriminated against.

In considering the harassment claims, the employment tribunal decided that the colleague’s comments did amount to unwanted conduct that had the effect but crucially not the purpose of violating the Claimant’s dignity or creating an intimidating, hostile degrading, humiliating or offensive environment for the Claimant.  Therefore, as this was not unwanted conduct related to the Claimant’s race and/or religious belief, this element of the claim also failed.

The EAT effectively agreed with the first instance tribunal’s decision and dismissed the Claimant’s appeal.  In doing so, the EAT acknowledged that, while another tribunal may have reached a different result, in this case the tribunal had applied the law correctly and there was no error in the decision that it had made.

In the judgment of the EAT, Mrs Justice Slade held that as it is necessary to demonstrate that harassment is related to a protected characteristic, this covers a wide category of conduct and it is therefore necessary to make a broad enquiry into the facts and circumstances of the alleged harassment, including examining the words or conduct of the alleged harasser and his or her mental processes.  Mrs Justice Slade held that, in the absence of such contextual information, a tribunal would quite likely find that harassment had been caused.

Comment

At first glance, the decision in Bakkali may seem unfair to the Claimant and to other potential claimants in a similar position.

However, the focus of the case is on the context around which alleged harassment takes place, which is surely important from an evidential point of view and which may, in different circumstances, lead to a very different outcome.

From a wider perspective and also in terms of not merely respecting but also following general principles of justice, it is also important that, whilst the concerns and claims of alleged victims of harassment are heard and treated seriously and with respect, the alleged harasser must also have an adequate opportunity to defend him or herself.

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