This case is about race discrimination and religious discrimination. This case particularly relates to direct discrimination and harassment. For any of the protected characteristics, direct discrimination is defined in Section 13 of the Equality Act 2010 as: A person discriminates against another if, because of a protected characteristic, a person is treated less favourably than others.
Harassment is defined in Section 26 of the Equality Act 2010 as: Unwanted conduct related to a relevant protected characteristic, that purpose or effect of violating dignity, or, creating an intimidating, hostile, degrading, humiliating or offensive environment.
The question in this case is:
Does the context of any alleged discriminatory/harassing conduct determine whether it is harassing or discriminatory?
Mr Bakkali, the Claimant, was a bus driver for Great Manchester Buses, the Respondent. The Claimant was a Muslim with Moroccan heritage. During a conversation with a colleague, the Claimant mentioned a report by a journalist about how ISIS fighters had turned Mosul, Iraq, into a well-run, totalitarian state and that ISIS fighters were confident and skilled.
A few weeks later, the Claimant’s colleague asked him if he was still promoting ISIS. The Claimant and his colleague then became embroiled in an aggressive confrontation for which the Claimant was ultimately dismissed.
The Claimant brought race and religious discrimination claims against the Respondent. The ET rejected the claim. The comment made by the Claimant’s colleague was not discriminatory or harassing because it was not made because the Claimant was a Muslim of Moroccan origin. It was made because the Claimant had previously made positive comments about ISIS.
The Claimant appealed and the EAT rejected the appeal. Out of context, the comment would look to be inferring that the Claimant supported ISIS because of his race and/or religion. However, with context, the comment was made due to a previous discussion and the Claimant’s race/religion was irrelevant.
The takeaway point:
Yes, the context of any comments made might help a Tribunal determine whether it is harassing/discriminatory conduct. For example, if a GP Surgery Manager makes a comment about the Surgery needing to be careful when employing local Asian employees because of a previous local Asian employee leaking sensitive personal information about an Asian patient’s abortion to the community, the context of the previous incident could show how the comment was not prejudiced but contextualised from previous events.
Likewise, any alleged harassing/discriminatory conduct must be viewed from the perspective of the recipient of the conduct. A comment, gesture or joke that was well-intentioned could be perceived as the recipient as harassing or discriminatory. For example, constantly patting an Afro-Caribbean colleague’s afro might be intended as a compliment to their hair but to them might be a degrading/patronizing hinderance.