Did a tribunal err in concluding that asking a Moroccan Muslim employee whether he "still supported Islamic State" did not amount to direct discrimination nor harassment related to race or religion?
Not in this context, held the EAT in Bakkali v GMB (South) Ltd.
Mr Bakkali had a conversation with another bus driver about Islamic State fighters and relayed comments made by a German journalist about them being good fighters and managing to run the country. The other driver subsequently approached Mr Bakkali and asked, "are you still promoting IS?".
The tribunal rejected Mr Bakkali's claims for direct discrimination and harassment, holding that this remark was because of the previous conversation and was not 'because of' nor 'related to' Mr Bakkali's religion or race.
The EAT noted that harassment claims required consideration of whether conduct was 'related to' a protected characteristic. As such, a broader enquiry was needed with a more intense focus on the context, in which the 'mental processes' of the alleged harasser will be relevant. The tribunal applied the correct test and did not err in law. As the same facts were relied on for claims for harassment and direct discrimination, the tribunal was entitled to refer back to their findings of fact on the discrimination claim.
Thanks to Paul Livingston of Outer Temple Chambers for preparing this case summary.
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