The Employment Appeal Tribunal (EAT) has considered whether a claimant was reasonable in perceiving conduct as being harassment relating to his religion.
Ali v Heathrow Express Operating Company Limited and another  EAT 54
The claimant worked for Heathrow Express as a security guard. Security checks were carried out at the airport by an external security company, which included creating and leaving suspicious objects to test how security officers responded to them. One such test involved a bag containing a box with electric cabling and a piece of paper visible on top with the words ‘Allahu Akbar’ written in Arabic. The claimant was one of a number of employees who were sent an email reporting on the results of this test, including images of the bag and the note.
The claimant, who is Muslim, brought a tribunal claim on the grounds that this conduct amounted to either direct discrimination or harassment relating to religion. His claim was rejected by the employment tribunal, which held that it was not reasonable in the circumstances for the claimant to perceive the conduct as harassment within the meaning of the Equality Act 2010.
The tribunal considered that the claimant should have understood that by using the phrase ‘Allahu Akbar’ the security company was not seeking to associate Islam with terrorism. In the context of recent incidents in which the phrase had been used by terrorists, it had used it to produce a suspicious package. The claimant appealed.
The claimant’s appeal was dismissed. The EAT confirmed that the claimant’s perception is just one of the matters to be taken into account when deciding whether conduct amounts to harassment under the Equality Act 2010.
Not all unwanted conduct which relates to a protected characteristic and causes offence or upset will necessarily meet the legal threshold of harassment under the Act. The EAT acknowledged that the use of the specific words in this case was particularly “charged” for the claimant, but could not conclude that the tribunal was wrong in finding that it did not amount to harassment. In reaching its decision, it highlighted the fact that the phrase had been used in connection with recent high-profile terrorist attacks, and the claimant was aware of that fact.
Consequences of this decision
The definition of harassment under the Equality Act 2010 states that the unwanted conduct must have either the “purpose or effect” of violating another’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
Whether conduct amounts to harassment should therefore be considered from the perspective of the victim, and does not depend on it being intentional on the part of the perpetrator. However, when determining whether the conduct has the required effect (i.e. when it is not intentional), the tribunal must take into account the perception of the individual, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. Here, the EAT was satisfied that the tribunal had applied the correct test in concluding that the conduct in question was not harassment.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at April 2022.