(Harassment) The claimant/appellant works for the Heathrow Express which was, at the relevant time, run by the first respondent. The second respondent was responsible for carrying out security checks at Heathrow Airport, including Heathrow Express stations there. In particular, this 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 first respondent who were circulated with an email reporting on the results of the test and including images of the bag and the note. He complained to the employment tribunal that the second respondent’s conduct amounted to either direct discrimination against him or harassment of him, as defined in the Equality Act 2010, by reference to his religion, that the second respondent had acted as the first respondent’s agent, and that, accordingly, both respondents were liable to him in that respect.
The tribunal concluded that the conduct amounted neither to direct discrimination nor to harassment by effect. As to harassment, this was because, applying section 26(4) of the 2010 Act, it was not, in all the circumstances, reasonable for the claimant to perceive the conduct as having an effect falling within section 26(1)(b). 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 tribunal decided that it therefore did not need to determine the agency point, nor a defence which invoked section 192 (national security).
The claimant appealed against the decision on the harassment complaint on the grounds that it was either perverse or insufficiently reasoned. The appeal on both grounds was dismissed.
Judges:
His Honour Judge Auerbach
Mr D Bleiman
Miss Sm Wilson CBE
Citations:
[2022] EAT 54
Links:
Jurisdiction:
England and Wales
Employment
Updated: 01 May 2022; Ref: scu.675614
