Anis Ali v Heathrow Express Operating Company Limited & Anor

For harassment by effect under section 26 of the Equality Act 2010, a tribunal must consider the claimant’s perception, all the other circumstances, and whether it was reasonable for the conduct to have the alleged proscribed effect. Not all unwanted conduct related to a protected characteristic which causes offence will meet the statutory threshold.

Context includes the purpose which the claimant knew, or reasonably ought to have understood, lay behind the conduct. The assessment of reasonableness is quintessentially one for the employment tribunal. An appellate court may interfere only where the evaluative conclusion was perverse in the legal sense, or the tribunal’s reasons did not explain the critical basis of its decision.

The claimant, a Muslim employee of Heathrow Express, complained of harassment related to religion. A security-testing contractor had placed an open bag containing cabling and a visible note bearing the Arabic words “Allahu Akbar” at a station. The claimant learned of the test from a circulated email.

The Employment Tribunal dismissed the harassment complaint. It found that the conduct was unwanted and related to religion, and that the claimant perceived an adverse effect. However, it held that, in the context of a security test and recent terrorist incidents in which the phrase had been used, it was not reasonable for him to perceive conduct of the proscribed kind. The claimant appealed on perversity and inadequate-reasons grounds.

1. Appeal dismissed. The tribunal was entitled to conclude that the security test did not amount to harassment by effect under section 26 of the Equality Act 2010.

2. The statutory inquiry required the tribunal to consider the claimant’s perception, the other circumstances, and whether it was reasonable for the conduct to have violated dignity or created an intimidating, hostile, degrading, humiliating or offensive environment. The objective question was not whether the claimant had been offended in an everyday sense. It was whether it was reasonable for him to perceive an effect within section 26(1)(b).

3. The tribunal was entitled to consider the context and the purpose which the claimant reasonably ought to have appreciated. It had found that the phrase had been used to make a security-test package appear suspicious by reference to recent threats and incidents, rather than to assert that Muslims generally were terrorists or terrorist sympathisers. Those propositions were not logically equivalent.

4. The claimant’s contentions about the grave wrong of stereotyping Muslims, the sacred nature of the phrase, and the availability of other testing methods did not make the tribunal’s evaluative conclusion perverse. The reasonableness assessment was for the tribunal. An appeal could succeed only if no reasonable tribunal, applying the correct test, could have reached that conclusion. That high threshold was not met.

5. The reasons were adequate. A tribunal need not address every submission. It must identify the matters critical to its decision and explain broadly why the party has won or lost. Although fuller reasons might have been preferable, the tribunal had stated the essential facts, applied section 26(4), and explained the contextual features on which its conclusion depended.

• Employment Appeal Tribunal: dismissed the claimant’s appeal against the dismissal of his harassment complaint: [2022] EAT 54.
• Employment Tribunal: dismissed the complaint arising from the security bag incident. The tribunal decision is not separately cited in the judgment.