Employment Law Cases

Bakkali v Greater Manchester Buses (South) Ltd

The context of unwanted conduct is important when deciding whether the conduct is ‘related to’ a protected characteristic.

For discrimination to be direct, any unfavourable treatment must be ‘on the grounds of’ the protected characteristic. By contrast, harassment requires only that the unwanted conduct is ‘related to’ that characteristic. The practical effect of this distinction can be seen in the case below.

Background

Mr Bakkali, a Muslim, was a bus driver with GMB. In early October 2015, he had a conversation with a non-Muslim colleague, C, about a report that he’d seen by a journalist who went to Syria and spoke to Islamic State (IS) fighters. The comments made by the journalist, which Mr Bakkali relayed to C, could reasonably have been understood as being of a positive nature. Mr Bakkali told C that the journalist had said that IS were very good fighters and managed to run the country. A few days later, C approached Mr Bakkali in the canteen and asked: ‘Are you still promoting IS?’ Mr Bakkali was understandably upset at this. Following a heated dispute, GMB investigated and decided to dismiss Mr Bakkali for gross misconduct. He brought a claim of harassment related to race and religion or belief based on C’s comment about IS. He also claimed direct discrimination on the same grounds, among other things.

The tribunal held that C’s question wasn’t asked because of Mr Bakkali’s race or religion but on the grounds of the conversation a few days earlier in which C had understood his references to the positive sentiments in the article as signifying some level of support for IS. As the remark was not on the grounds of Mr Bakkali’s race or religion, it was not direct discrimination. But was the remark nonetheless ‘related to’ Mr Bakkali’s race or religion, so as to qualify as harassment? No said the tribunal.

While C’s remark was unwanted conduct that had the effect (but not the purpose) of violating Mr Bakkali’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him (thus satisfying the first part of the definition of harassment in s. 26 of the Equality Act 2010), it was not ‘related to’ religion or race. Mr Bakkali appealed.

EAT decision

He lost. The EAT noted that conduct ‘related to’ a protected characteristic (in the test for harassment) is wider in scope than conduct ‘because of’ a protected characteristic (in the test for direct discrimination). It requires a broader enquiry, involving ‘a more intense focus’ on the context of the offending words or behaviour. Referring to an earlier case, the EAT said that it was the tribunal’s right and obligation:

‘to decide what the context is … it may be a mistake to focus upon a remark in isolation. A tribunal is entitled to take the view … that a remark, however unpleasant and however unacceptable, is a remark made in a particular context; it is not simply a remark standing on its own … words that are hostile may contain a reference to a particular characteristic of the person to whom and against whom they are spoken. Generally, a tribunal might conclude that in consequence the words themselves are … discriminatory, but [it] is not obliged to do so. The words are to be seen in context’.

While the EAT acknowledged that another tribunal may have come to a different conclusion, it couldn’t fault this tribunal’s reasoning and thus Mr Bakkali’s claim failed.

Link to judgment: http://www.bailii.org/uk/cases/UKEAT/2018/0176_17_1005.html

Comment

Comments and conversations on such sensitive subjects should be actively discouraged in the work place, as they are likely to cause offence. However, employers should be comforted by the fact that the whole context should be considered in claims of discrimination and not just the words themselves.