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Is the Claimant's perception sufficient to turn conduct into harassment?

No, held the EAT in Ali v Heathrow Express and Redline Assured Security Ltd.

The Claimant worked as a Security Guard at Heathrow Airport. Suspicious objects were sometimes planted to test how security officers responded to them. The Respondent carried out a test using a bag containing a box, some electrical cabling, and a visible note with the words, "Allahu Akbar" written in Arabic.

The Claimant, who is Muslim, later learned of the incident after an email was circulated reporting on the results of the test and including images of the bag and note. He complained that the conduct amounted to harassment by reference to his religion.

The tribunal concluded that the conduct did not amount to harassment because it was not in all the circumstances reasonable for the Claimant to perceive the conduct as having an effect falling within s26(1)(b) Equality Act 2010 and he should have understood that using this phrase was not seeking to associate Islam with terrorism but was in the context of recent incidents where the phrase had been used.

The Claimant appealed to the EAT on the grounds that the decision was either perverse or insufficiently reasoned.

The EAT rejected the appeal on both grounds finding that the Claimant's perception is just one of the matters for the tribunal to take into account when considering if conduct amounted to harassment as defined by s26 Equality Act 2010.

Thanks to Kate Lea of didlaw for preparing this case summary.