After the Bakkali vs Greater Manchester Buses case, it’s more important than ever to remember that context can determine whether ‘banter’ or conversations have crossed the line into unlawful harassment.
Moroccan Muslim, Mr Bakkali, was talking to a non-Muslim colleague, Mr Cotter, about an article about the Islamic State. The article itself contained positive comments on the Islamic State’s combat skills and their take on law and order enforcement. Mr Cotter approached Mr Bakkali a few days later and asked if he was “still promoting IS/Daesh?” Mr Bakkali took this very negatively and responded to his colleague in an aggressive manner. As a result, Mr Bakkali was dismissed for gross misconduct.
Mr Bakkali issued a harassment claim for direct discrimination, but the Employment Appeal Tribunal (EAT) concluded that he hadn’t experienced harassment. Instead they ruled that Mr Cotter had made the comment about IS because of the conversation about the article, rather than Mr Bakkali’s race or religion.
The EAT commented: “to decide what the context is […] it may be a mistake to focus upon a remark in isolation. A Tribunal is entitled to take the view […] that a remark, however unpleasant and however unacceptable, is a remark made in a particular context; it is not simply a remark standing on its own”.
The EAT continued: “[…]words that are hostile may contain a reference to a particular characteristic of the person to whom and against whom they are spoken. Generally a Tribunal might conclude that in consequence the words themselves are…discriminatory, but [it] is not obliged to do so. The words are to be seen in context”.
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