On the face of it, asking a Muslim employee if they promote Islamic State (IS) might seem discriminatory, but a recent case showed that the courts will look at the background to the comments and the reasons they were made before making a decision.
Mr Bakkali worked for Greater Manchester Buses, he was of Moroccan origin and a Muslim. One day, he told another employee about an article on IS fighters in Syria. Mr Bakkali told his colleague that IS were good fighters and were trying to enforce law and order in Syria. In the work canteen a few days later, the other employee asked Mr Bakkali whether he was still 'promoting IS'. Mr Bakkali was upset and responded aggressively. He was then dismissed for gross misconduct.
Mr Bakkali brought claims for direct discrimination and harassment on the grounds of race or religion based on the comment about IS. The employment tribunal said that the comment could potentially be discriminatory if it was linked to Mr Bakkali's religion. However, they decided that the comment was made because of the previous conversation about the Syria article rather than Mr Bakkali's religion or race. The same facts were relevant in the harassment claim too The comments created a hostile environment for Mr Bakkali, but, viewed in context, they were not made because of his religion or race. The Employment Appeal Tribunal agreed with the tribunal, noting that the conduct “related to” a protected characteristic (in the test for harassment) is wider in scope than conduct “because of” a protected characteristic” (in the test for direct discrimination). It therefore requires a broader enquiry, involving a “more intense focus” on the context of the offending words or behaviours.
Although Mr Bakkali lost his case, the EAT did say that a different tribunal may have reached a different conclusion on the same facts. Employers should take great care before disciplining someone who may have been the victim of discrimination.
