Claimant's perception was not sufficient to turn conduct into harassment
The Employment Appeal Tribunal (EAT) has held in Ali v Heathrow Express Operating Company Ltd and Redline Assured Security Ltd that a claimant's perception that conduct is harassment is not sufficient to turn it into harassment
The claimant worked as a security guard at Heathrow Airport. Suspicious objects were sometimes planted to test how security officers responded. One of the tests used a bag containing a box, some electrical cabling, and a visible note with the words, "Allahu Akbar" written in Arabic.
The claimant, who is Muslim, (who learned about the test after an email reporting on its results was circulated which included images of the bag and note) complained that the conduct amounted to harassment by reference to his religion. The tribunal held that the conduct didn't amount to harassment because it was not reasonable in all the circumstances for the claimant to perceive it as such. It reasoned that he should have understood that the use of the words "Allahu Akbar" was not seeking to associate Islam with terrorism, but was in the context of recent incidents where the phrase had been used (such as the London Bridge, Westminster Bridge and Manchester Arena Attacks which all took place in the same year as the test scenario).
The EAT rejected the claimant's appeal, concluding that the claimant's perception is only one of the matters for the tribunal to take into account when considering if conduct amounted to harassment as defined in the Equality Act 2010.
Take note: Although the EAT stressed that it appreciated the strength of feeling that the claimant had about the matter, and about matters more generally concerning the treatment of Muslims in society, the tribunal's task was to consider whether the treatment complained of amounted to harassment. In this instance it did not because the tribunal had found that the conduct of the respondents in setting up the tests was based on recent high-profile incidents in which the words "Allahu Akbar" were used, and so were used in this instance to make the package seem obviously suspicious. As a result the conduct could not be held to amount to harassment.