In Bakkali v Greater Manchester Buses (South) Ltd (t/a Stage Coach Manchester)  UKEAT/0176/17 the Employment Appeal Tribunal (EAT) found that conduct cannot be taken out of context when determining whether a statement amounts to religious discrimination or harassment. The correct test is whether the conduct was related to the protected characteristic in light of the surrounding circumstances.
Mr Bakkali was a Moroccan Muslim working as a bus driver with Greater Manchester Buses (South) Limited. Mr Bakkali discussed with a colleague a journalist’s report which made positive statements about ISIS. Later that month, whilst in the work’s canteen, the colleague asked Mr Bakkali whether he was “still promoting ISIS”. An argument ensued and Mr Bakkali was subsequently dismissed for gross misconduct due to his alleged aggressive and threatening behaviour. Mr Bakkali brought a claim for harassment related to race or religious belief. The Employment Tribunal (ET) concluded that when the circumstances were taken into account, it was clear that the statement was not made in relation to race or religion, but rather arose from the comments that Mr Bakkali has previously made.
Mr Bakkali appealed on the grounds that test for harassment had been incorrectly applied and that the ET should have instead considered whether the less favourable treatment was “because of” rather than “related to” a protected characteristic.
The EAT upheld the ET’s decision holding that the correct test had been applied. The “related to” test requires a broad enquiry of the context of the conduct and therefore ET had not erred in its conclusion.
The EAT noted that whilst they upheld the decision, a different ET could well have come to a different conclusion. Although the context of the previous conversation demonstrated that the comment was unrelated to Mr Bakkali’s race or religion, a finding of religious discrimination or harassment may have been made if the statement would not have been made to a non-Muslim individual in the place of Mr Bakkali.