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Case law: The context of an employee's comments or actions may mean they do not amount to harassment or discrimination

Employers dealing with allegations of harassment or direct discrimination against employees will welcome a ruling that employers can take into account the context of comments or actions which could otherwise be harassment or discrimination.

July 2018

This update was published in Legal Alert - July 2018

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

An employee, a Moroccan Muslim, had a workplace conversation with a colleague about an article putting forward positive views of Islamic State. A few days later, the same colleague asked him: "Are you still promoting IS?" He took offence and there was a fracas. The employer carried out an investigation and the employee was ultimately dismissed for gross misconduct. He claimed harassment.

There is harassment if an employee is subjected to unwanted conduct relating to a protected characteristic such as their age, disability, gender reassignment, marriage and civil partnerships, race, religion or belief, sex and sexual orientation.

The Employment Appeal Tribunal (EAT) upheld the Employment Tribunal finding that colleague's question was not related to the employee's religion or race (or any other protected characteristic) but was asked because of his previous conversation. The colleague would have asked the same question of a non-Muslim employee with whom he had had the same conversation about IS.

The claim was therefore defeated because of the context in which the question was asked. The EAT made it clear that, in another context, such a question may well have amounted to harassment - or even direct discrimination.

Operative date

  • Now

Recommendation

  • Employers dealing with allegations of harassment or direct discrimination should note they are entitled to take into account the context of the comments or actions

Case ref: Bakkali v Greater Manchester Buses (South) Ltd t/a Stage Coach Manchester UKEAT/0176/17/RN

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