Bakkali v Greater Manchester Buses (South) Ltd (trading as Stagecoach Manchester)

(1) The appeal is dismissed. The Employment Tribunal did not err in law and its conclusion was a permissible finding. (2) Statutory test. The wording of Equality Act 2010 section 26 is wider than the former "on grounds of" formulation and than the s.13 comparative test. A tribunal deciding harassment must ask whether the conduct was "related to" a protected characteristic and focus on context. (See paras [20]; [69]; [82].) (3) Context and mental processes. The context in which words or conduct occur is central to the s.26 inquiry. The mental processes of the alleged harasser may be relevant to establishing a link to the protected characteristic. However, the alleged harasser's evidence is not essential. A tribunal may draw adverse inferences from non‑attendance but must decide on the material before it, not by speculation. (See paras [20]; [69]; [82].) (4) Use of prior factual findings. Where a harassment claim rests on the same facts as a direct discrimination claim, a tribunal may rely on factual findings already made, provided it applies the correct s.26 test and re‑examines context as necessary. The ET here addressed the s.26 test and reached a permissible conclusion that the conduct was not related to religion or race. (See paras [20]; [69]; [82].) (5) Precedent and guidance. The court considered and applied the analytical approach in [2009] ICR 724 and subsequent authorities recognising the change introduced by s.26. The ET complied with the need to make clear factual findings on each element and to contextualise the conduct. (6) Disposition. The appeal is dismissed. There is no remittal. Costs and ancillary orders are not altered by this judgment.