18 May 2018
In Bakkali v GMB (South) Ltd, the Employment Appeal Tribunal decided that asking a Moroccan Muslim bus driver whether he "still supported Islamic State" was neither direct discrimination nor harassment related to race or religion.
In a conversation with another bus driver about so-called Islamic State, Mr Bakkali passed on comments by a German journalist that they were “good fighters” and “managed to run the country”. On a later occasion, the other driver asked Mr Bakkali: "are you still promoting IS?".
The ET rejected Mr Bakkali’s claim that this was direct discrimination because of his religion or race and harassment related to the same characteristics. The ET found that the remark was because of the previous conversation.
Mr Bakkali appealed but the EAT upheld the original decision.
Harassment does not have to be “because of” the protected characteristic but only “related to” it. Importantly, the EAT noted that the mental processes of the alleged harasser are nonetheless part of the context to be considered when deciding whether conduct is 'related to' a protected characteristic.
Of course, the context of Mr Bakkali’s previous comments would not have provided a defence if the colleague would not have asked "are you still promoting IS?" of a colleague who had made the same earlier comments as Mr Bakkali but was not Moroccan or a Muslim.