How is harassment assessed under the Equality Act 2010?

The Employment Appeal Tribunal (“EAT”) in the case of Ali v Heathrow Express Operating Company Ltd and Redline Assured Security Limited has considered whether the Tribunal was correct to dismiss a claim of harassment resulting from a security exercise at an airport where a “suspect package” was deployed which contained a sacred phrase in the Muslim faith.

Background

Mr Ali (“the Claimant”) worked for Heathrow Express Operating Company Limited (“the First Respondent”) at Heathrow Airport as a driver on their express train service. Redline Assured Security Limited (“the Second Respondent”) were engaged to perform security testing at the airport. As part of security testing, suspect packages were deployed at various locations to test how staff responded to them. In 2017, a suspect package was deployed which contained a piece of paper with the words “Allahu Akbar” at the top of the package. The Claimant learnt of the exercise when an email was circulated with the outcome of the test. This included a photograph of the package and piece of paper.

The Claimant complained to the Tribunal that the Second Respondent’s conduct in placing the wording on the package amounted to direct discrimination or harassment based on his religion and that the First Respondent was vicariously liable for the actions of their agent, the Second Respondent.

The Tribunal concluded that it was neither direct discrimination nor harassment. In respect of the decision on harassment, the Tribunal concluded that it was not reasonable, considering all the circumstances, for the Claimant to perceive the conduct as having the effect falling within section 26(1)(b) of the Equality Act 2010 (“the Equality Act”) (see below). It found that the Claimant should have understood that using the phrase was not associating Islam and terrorism, but it was used to produce a suspicious item based on the potential threats to the airport in the context of recent incidents in which the phrase had been used.

The Claimant appealed that this finding on harassment was perverse or insufficiently reasoned.

The Law

Section 26(1) of the Equality Act defines harassment as unwanted conduct related to a relevant protected characteristic where the conduct has the purpose or effect of violating the person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.

Section 26(4) of the Equality Act adds that in deciding whether the conduct has the effect referred to above, the following must be considered:

• The perception of the person with the protected characteristic.
• The other circumstances of the case.
• Whether it is reasonable for the conduct to have that effect.

Decision

The Employment Appeal Tribunal (EAT) rejected the appeal. It noted that the perception of the individual has to be evaluated to assess whether it is reasonable, considering all the circumstances, for the Claimant to perceive the conduct as having the effects in Section 26(1).

Counsel for the Claimant had argued that the conduct was inherently associating the Claimant’s religion and terrorism and that finding that it was legitimate to reinforce the suspicious nature of the package with known threats from previous terrorist events risked “perpetuating the stereotyping of Muslims as terrorists”. The EAT rejected this as it had been accepted that, regrettably, the phrase on the piece of paper had been used in terrorist attacks. It was not suggested that the Claimant did not appreciate this unfortunate fact. It had been found that the purpose of using these words was to make the package seem obviously suspicious, based on previous incidents. Even if this exercise was insensitive, that would not be enough to conclude that no reasonable tribunal, applying the correct legal test, could have reached the same decision. The EAT also found that the Tribunal’s decision was not insufficiently reasoned.

Comment

This decision is an important reminder that the test for harassment has both subjective and objective elements considering both the feelings of the individual and the circumstances of the conduct in question.

It is important to note that the EAT did appreciate that it was likely that the conduct would be offensive to Muslims. Indeed, the Tribunal had already noted that the Second Respondent ceased using religious phrases in its security exercises since this incident which the Tribunal described as “a sensible precaution”. The Claimant had already succeeded in claims against two colleagues who had subjected him to unlawful harassment based on his religion for which the First Respondent was found vicariously liable.

In this specific scenario, the harassment claim failed. However, it is unsurprising that the Second Respondent has revised its practice of security testing to limit future offence and the prospects of claims in the future. It is also a reminder for employers that they should be aware of the conduct of their employees and agents due to the potential for liability to pass to them.

Case reference: Ali v Heathrow Express Operating Company Limited and Redline Assured Security Limited [2022] EAT 54

*This article is for information purposes only. You should seek specific legal advice on any legal issues.*