The case of Bakkali v. Greater Manchester Buses (South) Ltd [2018] UKEAT 0176_17_1005 examines the nuances of harassment claims under the Equality Act 2010 ("EqA"). Mr. Mounir Bakkali, a bus driver of Moroccan origin and Muslim faith, was dismissed from his position following an incident where a colleague, Mr. Cotter, allegedly accused him of promoting ISIS. The Employment Tribunal ("ET") dismissed Bakkali's claims of harassment related to religious belief or race, as well as other claims including direct discrimination and unfair dismissal. Bakkali appealed the decision, contending that the ET misapplied the legal test for harassment by conflating it with direct discrimination.

The Employment Appeal Tribunal ("EAT") upheld the ET's dismissal of Bakkali's harassment claims. The core issue revolved around whether the ET failed to apply the appropriate legal test for harassment under Section 26 of the EqA, as opposed to the test for direct discrimination under Section 13. The EAT concluded that the ET correctly applied the test for harassment, which does not require a comparative analysis but rather focuses on whether the conduct was related to a protected characteristic, in this case, race or religion. The EAT found no evidence that Mr. Cotter's remark, "Are you still promoting IS/Daesh," was linked to Bakkali's race or religious beliefs, thereby upholding the ET's decision to dismiss the harassment claim.

Precedents Cited

The judgment referenced several key precedents to frame the legal context:

• Richmond Pharmacology v Dhaliwal [2009]: Addressed the elements of harassment and influenced the understanding of liability under predecessor legislation.
• Unite the Union v Nailard [2017]: Clarified the interpretation of "related to" in the EqA Section 26, emphasizing a broader inquiry into the context of conduct.
• Mrs S Warby v Wunda Group Plc and Grant v HM Land Registry [2011]: Highlighted the importance of context in determining whether conduct is related to a protected characteristic.
• Henderson v The General Municipal and Boilermakers Union [2016]: Discussed the relevance of the harasser's mental processes in establishing the relationship between conduct and protected characteristics.

Legal Reasoning

The court's legal reasoning centered on distinguishing between direct discrimination (Section 13) and harassment (Section 26) under the EqA:

• Section 13 - Direct Discrimination: Involves a comparative analysis, determining if the less favorable treatment was due to a protected characteristic.
• Section 26 - Harassment: Focuses on whether the conduct was related to a protected characteristic without requiring a comparison. This demands a broader contextual analysis.

The EAT emphasized that the ET correctly identified that Mr. Cotter's remarks were related to a specific conversation about ISIS, not directly to Bakkali's race or religion. The contextual nature of the remark did not satisfy the criteria for harassment under Section 26, as there was no linkage established between the conduct and Bakkali's protected characteristics.

Impact

This judgment reinforces the necessity for clear and contextual evidence when alleging harassment related to protected characteristics. It delineates the boundaries between direct discrimination and harassment, underscoring that not all negative interactions implicating protected characteristics rise to the level of unlawful harassment. Future cases will likely reference this judgment to assess the applicability of harassment claims, ensuring that tribunals maintain rigorous standards in evaluating the relationship between conduct and protected characteristics.

To better understand the legal intricacies of this case, it's essential to clarify key terms:

• Protected Characteristic: Attributes such as race, religion, gender, age, and more, protected under the EqA from discrimination.
• Harassment (Section 26): Unwanted conduct related to a protected characteristic that violates dignity or creates a hostile environment. It does not require comparing treatment against others.
• Direct Discrimination (Section 13): Occurs when someone is treated less favorably than others because of a protected characteristic. It involves a comparative analysis.
• Related to: Under Section 26, conduct must be linked to a protected characteristic, but this relationship is broader and does not necessitate proving intent based on that characteristic.