In Ali v (1)Heathrow Express Operating Company Ltd & (2)Redline Assured Security Ltd, the Employment Appeal Tribunal (EAT) gave important guidance on how relevant the claimant’s (an employee’s) perception is when evaluating allegations of harassment.

We explore the case and set out the key factors employers need to look out for when dealing with harassment claims.

Background to the case

The claimant worked for the Heathrow Express (the first respondent). Redline Assured Security Ltd (the second respondent), was responsible for carrying out security checks at Heathrow Airport, including Heathrow Express stations there, which involved creating and leaving suspicious objects to test how security officers responded to them. In August 2017 it carried out a test using 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 claimant, who is a Muslim, was among a group of employees of the Heathrow Express who received an email reporting on the results of the test and including images of the bag and the note.

He complained to the employment tribunal (ET) that Redline’s conduct amounted to either direct discrimination against him, or harassment of him by reference to his religion.

The ET dismissed his claims.

On the harassment claim, the ET found it unreasonable for the claimant to perceive the conduct as having the effect or purpose of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. In particular, the ET considered that the claimant should have understood that, in using this phrase, Redline 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 claimant appealed against the decision on the harassment complaint on two grounds - that it was either perverse or insufficiently reasoned.

The EAT’s decision

The EAT dismissed the appeal, noting that although “we appreciate the strength of feeling that the claimant plainly has about this matter, and about matters more generally concerning the treatment of Muslims in society”, the ET’s decision was not perverse or inadequately reasoned.

The EAT confirmed that: “The tribunal made proper findings that the conduct was not directed at the claimant because of his religion, that the phrase had been used in connection with recent high-profile terrorist attacks, that it was, for that particular reason, chosen to reinforce the suspicious nature of the package, and that the claimant should have reasonably appreciated that. These were all features of the circumstances to which it was entitled to have regard when deciding whether it was reasonable for him to perceive the conduct as having the proscribed effect. We do not think any of these other points or arguments show that it was bound nevertheless to decide otherwise.”

The challenge for lack of reasons also failed as the law and essential facts were set out in the ET’s judgment. The EAT went on to conclude that“there is no reason at all to suppose that the tribunal’s failure to mention […] that the vast majority of Muslims do not behave in the manner of the terrorist extremists, or support them, that it is wrong to tarnish Muslims generally by using their sacred terms in association with possible terrorist acts, and that law-abiding Muslims would be deeply offended by the association of their religion with terrorism – was because it had failed to consider them, or took issue with them as such. Their nature is such that the tribunal did not need to confirm if it regarded them as uncontroversial as such.”

What employers can learn from the case

This decision is a reminder of the well-established legal principles in harassment claims – namely, that there are two elements to take into account in the test of whether something amounts to unlawful harassment. Employees often argue that their perception is key to establishing that harassment has occurred. However, this decision makes clear that the claimant’s perception (the subjective element) of the conduct complained of is not decisive; it is only one factor that the tribunal has to take into account. For conduct to amount to harassment under section 26(1) of the Equality Act, the tribunal also has to decide whether the claimant’s perception is reasonable in all the circumstances of the case (the objective element).

We recommend that employers follow the same approach when dealing with any complaints of bullying or harassment (not just with complaints about conduct prohibited by the Equality Act) and internal policies should reflect both strands of the test.

How Capsticks can help

Capsticks has significant experience of supporting employers to prevent discrimination and harassment (by drafting equality and diversity policies, codes of conduct and delivering training to employees at all levels) and also to deal with any complaints that may arise (by conducting investigations, supporting decision makers and HR, and defending any employment tribunal claims)

For further information on how we might assist your organisation, please contact Victoria Watson, Alistair Kernohan or Chloe Edwards.