25 April 2022

Discrimination - Terrorism tests in a high-risk working environment

Oliver Tasker Partner & Head of Employment

A harasses B if they engage in unwanted conduct, relating to a protected characteristic such as sex or race, which has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.  

In terms of the effect of the conduct in question, a tribunal will consider B’s perception of what has happened, the overall context of the case and whether it is reasonable for A’s conduct to have that effect on B.

In Ali v Heathrow Express, the employer’s methods of security testing involved leaving suspicious packages for security staff to find, to test how they would deal with genuine security issues. The employer’s security contractor planted a bag containing a cardboard box, some wiring and a visible note saying ‘Allahu Akbar’ written in Arabic. The employee was not on duty that day but heard about the incident when an email was sent reporting the outcome of the test.  The employee, who is Muslim, brought claims for direct discrimination and harassment, saying that the test had associated Muslims with terrorism. All claims were dismissed by the tribunal. They accepted that the conduct was unwanted and related to the employee’s religion. Offence was not intended, so this was a case about the effect of the conduct rather than its purpose. However, the tribunal said it wasn’t reasonable for the employee to have perceived the conduct in question as harassment. The employer was not trying to link Islam with terrorism but had used the phrase to create a realistically suspicious item. There had been a spike in terrorist incidents that year and the same phrase had been used in recent terrorist incidents. Other phrases were also used in security testing, such as ‘Animal testing must STOP now’ and ‘No third runway’.  The tribunal said it wasn’t reasonable for the conduct to have the effect of violating the employee’s dignity or creating a hostile environment for him. He should have reasonably appreciated the intention that lay behind the security test. The employee appealed to the EAT.

The EAT agreed that the employee had not been harassed. The tribunal had decided on the facts that it was not reasonable for the employee to have viewed the conduct as harassment. Even if another tribunal could have come to a different decision, that did not make the tribunal’s decision perverse, such that no reasonable tribunal could have come to it.

This case highlights the sensitivity required when dealing with terrorism tests in a high-risk working environment. This case, and the workplace security test cited in it, came on the back of a spike of terrorist incidents in 2017 where religious phrases had been used. Whilst confirming that the tribunal’s decision was not perverse, the EAT did appreciate the strength of feeling that the employee had and acknowledged concerns about how Muslims in society are treated more generally. It was not relevant to the case, but the EAT noted that the employer in this case had not used religious phrases in its security tests since, which the employment tribunal said was ‘sensible’. On the facts, this was not harassment, but the employer seems to have changed its approach anyway to avoid any similar issue arising in future.

Any questions?

Contact Oliver at oliver.tasker@wilkinchapman.co.uk to discuss

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