EAT, Judge Auerbach, Mr D Bleiman and Miss S Wilson CBE, [2022] EAT 54, 7 April 2022

This decision is a reminder that, where unwanted conduct related to a protected characteristic is not intended to offend, intimidate, etc, an objective test applies to the question whether conduct amounts to harassment. The claimant was a Muslim employee of Heathrow Express. He complained of harassment and direct discrimination connected with religion after receiving an email concerning a security test carried out by the second respondent, which was responsible for carrying out security checks at Heathrow Airport and Heathrow Express stations at the airport. The test in question had involved a bag containing a box, some electric cabling and, visible at the top, a piece of paper with the words “Allahu Akbar” written in Arabic. The email reporting on the results of the test and included images of the bag and the note.

A tribunal rejected the claimant’s complaints, ruling on his harassment claim that it was not, in all the circumstances, reasonable for him to perceive the conduct as violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. In particular, the tribunal considered that the claimant should have understood that, in using this phrase, the second respondent 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 in order to produce a suspicious item based on possible threats to the airport. The evidence before the tribunal was that the second respondent “would often use English words and text … designed to raise suspicion too, e.g. ‘Animal Testing must STOP now’ or ‘No Third Runway’.”

The claimant’s appeal, which was on the grounds that the decision was either perverse or insufficiently reasoned, was dismissed. This post deals only with the first of these grounds of appeal which was that the tribunal’s decision was perverse because the vast majority of Muslims were not, and did not support, terrorists and that the second respondent’s actions had tarnished Muslims as terrorists or terrorist sympathisers.

Having pointed out that the EAT’s role was to determine whether the tribunal had erred in law rather than whether or not it (the EAT) agreed with the tribunal’s conclusions, Judge Auerbach went on to cite Mummery LJ put it in Yeboah v Crofton [2002] IRLR 634 §93 to the effect that a perversity appeal “ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has ‘grave doubts’ about the decision of the Employment Tribunal, it must proceed with ‘great care’…”. He made reference to the decisions in Richmond Pharmacology v Dhaliwal [2009] ICR 724 in which the EAT had ruled that “Whether it was reasonable for a claimant to have felt her dignity to have been violated is quintessentially a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question. One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence (or, more precisely, to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt.” This passage had been (§44) “specifically endorsed by the Court of Appeal in Land Registry v Grant [2011] ICR 1390 §13 where the submission that the intention of the actor could only be relevant to harassment by purpose, as opposed to effect, was specifically rejected”.

Judge Auerbach also  referred to Underhill LJ ‘s statement in  Pemberton v Inwood [2018] ICR 1291, §88 that:

“In order to decide whether any conduct falling within sub-paragraph (1) (a) has either of the proscribed effects under sub-paragraph (1) (b), a tribunal must consider both (by reason of sub-section (4) (a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section (4) (c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also, of course, take into account all the other circumstances – sub-section (4) (b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant’s dignity or creating an adverse environment for him or her, then it should not be found to have done so.”

The EAT rejected the argument put for the claimant that (§48)  “it was inherent that, in using the sacred words of Islam in this context… [t]hey were thereby inherently associating the religion with terrorism, in the specific sense … that they were tarnishing the vast majority of Muslims as terrorists or terrorist sympathisers ‘through using their sacred terms in association with possible terrorist acts’” and that, this being the case, the tribunal “could only properly, have concluded that the use of these words in this way inherently amounted to the stereotyping of Muslims.” The phrase had, as the tribunal found (§50) “been used in connection with terrorist attacks in 2017 and beyond”, and the claimant was aware of this. The EAT did not accept that the tribunal (§51) “should have considered that the proposition … that some terrorists invoke or use the sacred words of Islam in connection with their terrorist acts, is logically effectively the same as the proposition that some, or most, Muslims in general are terrorists, or terrorist sympathisers. These two propositions are simply not logically equivalent”. This being the case, the perversity challenge had to fail. There was no proper basis on which to find that the second respondent had stereotyped all Muslims as terrorists or supporters thereof.

The EAT accepted at §59 that because the stereotyping of Muslims generally as terrorists or terrorist sympathisers was “a significant and serious blight on the lives of Muslims, the use of [the sacred words] words in this context was particularly charged for him, more than, say, the use of an animal-rights slogan co-opted by some terrorists would be for a vegan”. It did not accept, however, that this required the tribunal to find that the claimant’s perception that the conduct had the effects on him of the kind referred to in section 26(1)(b) was reasonable.

Claimant: Nicholas Toms, instructed by RMT Legal Department

Respondents: Michael Salter, instructed by Eversheds Sutherland (International) LLP); Mark Williams, instructed by DWF LLP