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

For harassment under Equality Act 2010 section 26, conduct need only be related to a protected characteristic. That is broader than direct discrimination, which requires treatment because of the characteristic.

The inquiry requires careful consideration of the whole context. The alleged harasser’s mental processes may be relevant, but evidence from that person is not essential. A tribunal may determine the issue from all the evidence, including the context in which the words were spoken.

A tribunal may rely on factual findings made when determining a direct-discrimination complaint, provided that it then applies the distinct section 26 test. Its contextual conclusion will not disclose an error of law merely because another tribunal might have reached a different conclusion.

The claimant, a Muslim man of Moroccan origin employed as a bus driver, complained that a colleague harassed him by asking in a workplace canteen whether he was still promoting IS/Daesh. The remark followed an earlier conversation in which the claimant had repeated comments by a German journalist about ISIS that could be understood as positive.

The Employment Tribunal dismissed claims for direct race and religious discrimination, harassment, unlawful deductions and unfair dismissal. It found that the remark arose from the earlier conversation rather than the claimant’s race or religion. It found the conduct unwanted and capable of having the relevant effect, but not related to either protected characteristic.

The appeal concerned only harassment. The issue was whether the Tribunal had wrongly applied the direct-discrimination test instead of the broader test in section 26 of the Equality Act 2010.

1. Appeal dismissed. The Employment Tribunal applied the correct legal test and was entitled to dismiss the harassment complaint.

2. Section 26 of the Equality Act 2010 requires unwanted conduct related to a protected characteristic which has the prescribed purpose or effect. The phrase “related to” is wider than conduct occurring because of, or on grounds of, the characteristic. It therefore calls for a broader inquiry than direct discrimination under section 13.

3. The context of the words or conduct requires particularly close examination. The alleged harasser’s mental processes may assist that inquiry, but direct evidence from that person is not indispensable. A tribunal must decide on the material before it. An absence of evidence may permit an inference, but not speculation.

4. The Tribunal was entitled to use its factual findings on the direct-discrimination complaint because the same facts underlay both claims. It did not merely repeat the section 13 test. In addressing harassment, it expressly considered whether the remark was related to religion or race and concluded, in its factual context, that it was not.

5. The colleague’s remark followed the claimant’s earlier account of comments about ISIS which the colleague understood as promotion of ISIS. That finding supported the Tribunal’s conclusion that the remark was unrelated to the claimant’s religion or race. A different tribunal could have reached another factual conclusion, but this conclusion involved no error of law.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal’s dismissal of the harassment claims was upheld.
• Employment Tribunal: In a judgment sent to the parties on 8 December 2016, dismissed the claimant’s claims for harassment, direct race and religious discrimination, unlawful deductions from wages and unfair dismissal.