Harassment: a subjective test?

In light of a recent tribunal, Gearalt Fahy explores if security tests can amount to religious harassment

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Claims in respect of unlawful harassment may be brought under the Equality Act 2010 in relation to conduct that is related to a protected characteristic.

The statutory definition stipulates that it is unwanted conduct which violates a person’s dignity or creates an ‘intimidating, hostile, degrading, humiliating or offensive environment’ for another. 

It does not matter whether it was not intended to cause offence if the other person takes it that way and if, in the particular circumstances of the case, it was reasonable for the person to be offended.

The qualification that it must be reasonable for the conduct to have caused offence in the particular circumstances means that the test is not entirely subjective. 

The importance of considering the context in which the conduct took place was highlighted in the case of Mr Anis Ali v (1) Heathrow Express Operating Company Ltd (2) Redline Assured Security Ltd where words connected to the claimant’s religion had been used as part of a security testing exercise.

Mr Ali, a Muslim security officer, works at the Heathrow Express train line. The employer had put in place arrangements for regular security drills with the aim of checking that staff were responding appropriately to terrorist threats.

In one of these drills a bag had been left with a box visible inside. There were wires connected to the box and it was designed to look like it was potentially an explosive device.A note had been left attached to the package, on which there was Arabic writing saying ‘Allahu Akbar’. 

A report containing details of the drill was subsequently circulated to all security staff by email. When Mr Ali saw the report, he was offended by the images of the bag and note. He complained that this associated Muslims with terrorism and therefore amounted to both direct discrimination and harassment on the grounds of religion. He brought claims in the employment tribunal.

The claims were dismissed. It was held that it was not reasonable for Mr Ali to perceive the conduct as violating his dignity or creating an ‘intimidating, hostile, degrading, humiliating or offensive environment.’ 

In these particular circumstances he should have understood that, in using the phrase ‘Allahu Akbar’, the employer was not seeking to associate Islam with terrorism, but, in the context of recent incidents in which the phrase had been used by terrorists, had used it to produce a suspicious item based on possible threats to the airport. 

In previous drills notes had been used and these had included references to activists in support of the protection of animal rights and protesters against further airport developments.

The current phrase has been used in the security drill to reinforce the ‘suspicious’ nature of the package to refer to matters connected with previous terrorist incidents. 

It was held that Mr Ali should have understood that, in using this phrase, it was not sought to associate Islam with terrorism, the intention was simply to highlight suspicions about the package. 

It is important to note that the effect of conduct alleged to amount to harassment will be assessed from the claimant’s subjective viewpoint. Consideration should always be given to whether conduct or communications could cause offence even if it is not intended. 

What is highlighted here is that there’s a further qualification in relation to the legal definition of harassment under the Equality Act 2010, that is whether it is reasonable for the claimant to be offended taking into account the particular circumstances in which the conduct or communications took place. 

In practice this will include consideration of cultural norms and the workplace environment in addition to the personal circumstances of the individual.  

Gearalt Fahy is an employment partner at Gateley Legal